author: ANITA LASTER MAYS, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Demetrius H. CARTER, Defendant-Appellant
    No. 104874
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 7, 2018
    Susan J. Moran, 55 Public Square, Suite 1616, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT.
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Mary M. Frey, Assistant County Prosecutor, Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE.
    BEFORE: Laster Mays, J., Kilbane, P.J., and E.T. Gallagher, J.
    JOURNAL ENTRY AND OPINION
    ON RECONSIDERATION

      The original announcement of decision State v. Carter , 8th Dist. Cuyahoga No. 104874, 2017-Ohio-8864, 2017 WL 6055538, released on December 7, 2017, is hereby vacated. This opinion, issued upon reconsideration, is the court's journalized decision in this appeal. See App.R. 22(C) ; see also S.Ct.Prac.R. 7.01.

   ANITA LASTER MAYS, J.:

{¶ 1} After reconsideration, the opinion as announced by this court on December 7, 2017, State v. Carter , 8th Dist. Cuyahoga No. 104874, 2017-Ohio-8864, 2017 WL 6055538, is hereby vacated and substituted with this opinion.

{¶ 2} Defendant-appellant, Demetrius H. Carter ("Carter"), appeals his guilty verdict and sentence, and ask this court to reverse his conviction and remand to the trial court for a new trial. We affirm.

{¶ 3} Carter was found guilty of one count of rape, a first-degree felony in violation of R.C. 2907.02(A)(2) ; three counts of kidnapping, first-degree felonies in violation of R.C. 2905.01(A)(4) ; and two counts of gross sexual imposition, fourth-degree felonies in violation of R.C. 2907.05(A)(1). He was sentenced to a total of eight years and required to register as a Tier III sex offender.

I. Facts

{¶ 4} B.C., the daughter of Carter, accused Carter of kidnapping, rape, and forcing her to have unwanted sexual conduct with him. B.C. testified that her father, Carter, began making sexual advances towards her when she was in the seventh grade. B.C. recalled one moment when she and Carter were lying next to each other watching movies. Carter told B.C. that he was cold and requested that she move closer to him. When B.C. moved closer to him, she felt Carter's pelvis poking her. Carter continued to push his pelvis closer to B.C., and his actions made B.C. feel confused and as if she could not get up and walk away.

{¶ 5} Once Carter moved out of the family home, as a result of divorce from B.C.'s mother, B.C. would see Carter at his sister's house. One occasion when B.C. was visiting Carter at Carter's sister's house, B.C. awoke to Carter hugging her around the waist. Carter also began pushing his pelvis against B.C. and groping her chest. Then Carter used his hand to rub B.C.'s vagina. B.C. testified that Carter rubbed the inside and outside of her vagina with his fingers. B.C. felt as if she could not get up and walk away from Carter.

{¶ 6} Another incident took place at Carter's sister's new home where B.C. and Carter were sleeping on the floor. B.C. awoke to Carter rubbing her breasts. Carter then told B.C. that he loved her. The next morning Carter told B.C. that they needed to stop having sexual contact, but he continued. B.C. did not feel as if she could get away from Carter while he was touching her.

{¶ 7} B.C. also visited Carter at Carter's father's home. During a visit, B.C. woke to Carter holding her around the waist while pushing his pelvis against her. B.C. tried to move away from him, but Carter pulled her closer. Carter began groping B.C.'s breast and then pulled her pants down. Carter got out of the bed, and B.C. heard him open a plastic wrapper. Carter then came back to the bed and laid down behind B.C. B.C. felt Carter touch her vagina both inside and out, but was unsure of what he was touching her with.

{¶ 8} B.C. sent her mother, S.C., a text message detailing the events of Carter touching her. S.C. went to the police, and B.C. was first interviewed by Lauren Hennessey ("Hennessey"), a social service worker with the Department of Children and Family Services. During her testimony, the state asked her, "When you met with [B.C.], what types of information is it important for you to learn for you to make the referrals that you are tasked with making?" (Tr. 323.) Hennessey responded by stating, "[s]o we make referrals typically, you know, when there's credible, consistent disclosures, which hers was. And, you know, she was seeking-the family was seeking medical-not medical, mental health treatment as well because of what had happened." (Tr. 323.)

{¶ 9} B.C.'s case was referred to Julie Loyke ("Loyke"), a certified pediatric nurse practitioner who performs non-acute sexual abuse examinations for the Cleveland Care Clinic. Loyke testified as to her experiences practicing as a Sexual Assault Nurse Examiner ("SANE"). Loyke described her conversation with B.C., and the procedures used to interview and examine B.C.

{¶ 10} At the end of the trial, Carter was found guilty and sentenced to eight years in prison. Carter filed this timely appeal arguing six assignments of error for our review:

I. The [s]tate failed to present sufficient evidence of the offenses charged;
II. The appellant's convictions are against the manifest weight of the evidence;
III. The trial court erred in allowing the [s]tate's witness to opine regarding the appellant's guilt, in violation of the Ohio Rules of Evidence, the right to a fair trial, and the Due Process Clause of the Fourteenth Amendment of the United States Constitution;
IV. Appellant was denied due process and a fair and impartial trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I, Section 16 of the Ohio Constitution based on prosecutorial misconduct;
V. The appellant was denied effective assistance of counsel in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution ; and
VI. The trial court erred in allowing the admission of the accuser's text message allegation which was offered for the sole purpose of demonstrating a prior consistent message without first showing recent fabrication, and which denied the appellant due process and the right to a fair trial.

II. Sufficiency of Evidence

A. Standard of Review

{¶ 11} Claiming insufficient evidence,

raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a sufficiency challenge, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

State v. Herring , 8th Dist., 2017-Ohio-743, 86 N.E.3d 133, ¶ 16.

B. Law and Analysis

{¶ 12} Carter argues that the state failed to present sufficient evidence of the offenses charged.

The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598 [2009 WL 2186608], ¶ 13. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. Id. at ¶ 12. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

State v. Pridgett , 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, [2016 WL 762671], ¶ 15.

{¶ 13} Carter was convicted of one count of rape, in violation of R.C. 2907.02(A)(2) ; three counts of kidnapping, in violation of R.C. 2905.01(A)(4) ; and two counts of gross sexual imposition, in violation of R.C. 2907.05(A)(1). The statutes read as follows:

No person shall engage in sexual conduct with another when the offender purposely compels the other person to submit by force or threat of force.

R.C. 2907.02(A)(2).

No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against the victim's will.

R.C. 2905.01(A)(4).

No person shall have sexual contact with another, not the spouse of the offender; cause another, not the spouse of the offender, to have sexual contact with the offender; or cause two or more other persons to have sexual contact when any of the following applies: The offender purposely compels the other person, or one of the other persons, to submit by force or threat of force.

R.C. 2907.05(A)(1).

{¶ 14} Carter argues that the evidence was insufficient to support his conviction of rape because B.C. could not testify with certainty that Carter used his fingers to penetrate her vagina. However, B.C. did testify that Carter was rubbing her vagina both on the outside and inside. (Tr. 227.) When asked if she felt like she could walk away or make it stop, B.C. replied "no." (Tr. 228.) Because of the parent-child relationship that existed between Carter and B.C., Carter did not have to physically force B.C. to engage in sexual intercourse. "In certain scenarios, especially those involving parent-child relationships, a child may feel compelled or psychologically coerced into submitting to her aggressor for reasons other than an overt show of force or threats of force." State v. Weems , 8th Dist. Cuyahoga No. 102954, 2016-Ohio-701, 2016 WL 763101, ¶ 25. Citing State v. Jordan , 8th Dist., 2017-Ohio-381, 83 N.E.3d 364, ¶ 14. We find that B.C.'s testimony is sufficient evidence to conclude that Carter did commit rape.

{¶ 15} Carter also contends that the evidence was insufficient to support his kidnapping conviction. However, Carter took B.C. from her home to his father's and sister's homes. On two occasions at Carter's sister's home, B.C. woke up to Carter groping her breasts, pushing his pelvis against her, and rubbing her vagina. B.C. testified that she felt she could not get up and walk away. At Carter's father's residence, B.C. stated that she awoke to Carter groping her breasts and using an unidentifiable object to penetrate her vagina. B.C. felt as if she could not walk away or make it stop. Given B.C.'s testimony to the facts of being removed from her home to go with Carter, and Carter engaging in sexual activity with her, there is sufficient evidence to prove that Carter engaged in kidnapping.

The kidnapping statute punishes certain removal or restraint done with a certain purpose and the eventual success or failure of the goal is irrelevant. State v. Price , 8th Dist. Cuyahoga No. 99058, 2013-Ohio-3912 [2013 WL 4988360], ¶ 28 ; State v. Smith , 9th Dist. Summit Nos. 23468 and 23464, 2007-Ohio-5524 [2007 WL 3010383], ¶ 41, quoting State v. Matthieu , 3d Dist. Mercer Nos. 10-02-04 and 10-02-05, 2003-Ohio-3430 [2003 WL 21496413], ¶ 17.

Jordan at ¶ 31. In addition, given the facts of repeated forced sexual conduct, there is also sufficient evidence to convict Carter of gross sexual imposition. Carter's first assignment of error is overruled.

III. Manifest Weight of the Evidence

A. Standard of Review

{¶ 16} In reviewing a claim challenging the manifest weight of the evidence, the question to be answered is whether,

"[T]here is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt." (Emphasis sic.) In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the jury " 'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.[3d]2d 172, 175, 458 N.E.2d 717 (1983).

State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.

{¶ 17} "Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence." Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541.

Weight of the evidence concerns "the inclination of the greater amount of credible evidence , offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them." (Emphasis added.)

Id.

B. Law and Analysis

{¶ 18} Carter contends that his convictions were against the manifest weight of the evidence. "A manifest weight challenge questions whether the state met its burden of persuasion at trial." State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12.

Although an appellate court reviews credibility when considering the manifest weight of the evidence, the credibility of witnesses and the weight of the testimony are primarily for the trier of fact. The trier of fact is best able " 'to view the witnesses and observe their demeanor, gestures, and voice inflections, and use these observations in weighing the credibility of the proffered testimony.' "

State v. Kurtz , 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999, 2013 WL 3582078, ¶ 26, quoting State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.

{¶ 19} Specifically, Carter argues that because his sister testified that she did not see B.C. at her home during the time period in which B.C. states Carter molested her, her testimony should have been weighed greater then B.C.'s testimony. However, the jury heard Carter's sister's testimony as well as B.C.'s testimony, and the jury concluded that B.C.'s testimony was more credible. The jury was able to view and observe both Carter's sister's and B.C.'s testimony.

In State v. Bruno , 8th Dist. Cuyahoga No. 84883, 2005-Ohio-1862 [2005 WL 926995], we stated that the court must be mindful that the weight of the evidence and the credibility of witnesses are matters primarily for the trier of fact. A reviewing court will not reverse a verdict where the trier of fact could reasonably conclude from substantial evidence that the prosecution proved the offense beyond a reasonable doubt. State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; State v. Eley , 56 Ohio St.2d 169, 383 N.E.2d 132 (1978).

State v. Anderson , 8th Dist. Cuyahoga No. 90460, 2008-Ohio-4240, 2008 WL 3870696, ¶ 11.

{¶ 20} From the evidence presented, the trier of fact could reasonably conclude that the prosecution proved the offenses beyond a reasonable doubt. Carter has not demonstrated that his convictions were against the manifest weight of the evidence. Carter's second assignment of error is overruled.

IV. Prejudicial Testimony

A. Standard of Review

{¶ 21} "It is well established that, pursuant to Evid.R. 104, the introduction of evidence at trial falls within the sound discretion of the trial court." Caruso v. Leneghan , 8th Dist. Cuyahoga No. 99582, 2014-Ohio-1824, 2014 WL 1775577, ¶ 32, quoting State v. Heinish , 50 Ohio St.3d 231, 553 N.E.2d 1026 (1990).

Further, Evid.R. 702, which controls the admission of expert testimony during the course of trial, provides that " '[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.' " The determination of whether a witness possesses the qualifications necessary to allow expert testimony lies within the sound discretion of the trial court. In addition, the qualification of an expert witness will not be reversed unless there is a clear showing of an abuse of discretion on the part of the trial court.

Id. at ¶ 34, quoting State v. Maupin , 42 Ohio St.2d 473, 330 N.E.2d 708 (1975) ; State v. Minor , 47 Ohio App.3d 22, 546 N.E.2d 1343 (10th Dist.1988).

{¶ 22} In addition,

[T]he decision whether to admit or to exclude evidence rests within the sound discretion of the trial court. State v. Brown , 8th Dist. Cuyahoga No. 99024, 2013-Ohio-3134 [2013 WL 3808558], ¶ 50, citing State v. Jacks , 63 Ohio App.3d 200, 207, 578 N.E.2d 512 (8th Dist.1989). Therefore, an appellate court that reviews the trial court's decision with respect to the admission or exclusion of evidence must limit its review to a determination of whether the trial court committed an abuse of discretion. Id. , citing State v. Finnerty , 45 Ohio St.3d 104, 107, 543 N.E.2d 1233 (1989). An abuse of discretion requires a finding that the trial court's decision was unreasonable, arbitrary, or unconscionable. State v. Minifee , 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146 [2013 WL 3808869], ¶ 23, citing Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

State v. Marshall , 8th Dist. Cuyahoga No. 100736, 2015-Ohio-2511, 2015 WL 3899064, ¶ 16.

B. Law and Analysis

{¶ 23} Carter argues that the trial court erred in allowing the state's witnesses to opine regarding the appellant's guilt, in violation of the Ohio rules of evidence, violation of the right to a fair trial and in violation of the due process clause of the Fourteenth Amendment of the United States Constitution. Specifically, Carter argues that the testimonies of Hennessey and Loyke regarding B.C.'s accusations being credible and consistent disclosures amounted to prejudicial and impermissible testimony. "The admission or exclusion of evidence rests within the sound discretion of the trial court." Caruso , 8th Dist. Cuyahoga No. 99582, 2014-Ohio-1824, ¶ 33, quoting Jacks at 207, 578 N.E.2d 512.

{¶ 24} Hennessey was asked by the state, "what types of information is it important for you to learn for you to make the referrals that you are tasked with making?" (Tr. 323.) Hennessey responded, "[s]o we make referrals typically, you know, when there's credible, consistent disclosures, which hers was. And, you know, she was seeking-the family was seeking medical-not medical, mental health treatment as well because of what had happened." Carter argues that the testimony bolsters the allegations. We disagree.

{¶ 25} It is clear that the state did not ask Hennessey what her opinion was regarding the veracity of B.C. Rather, the record shows that the state asked Hennessey, as a professional, what is important for her to learn from an individual to make necessary referrals?

An expert may not testify as to the expert's opinion of the veracity of the statements of a child declarant. State v. Boston , 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989). However, an expert may provide testimony that supports "the truth of the facts testified to by the child, or which assists the fact finder in assessing the child's veracity." State v. Stowers , 81 Ohio St.3d 260, 262-263, 690 N.E.2d 881 (1998).

State v. Ervin , 8th Dist. Cuyahoga No. 80473, 2002-Ohio-4093, 2002 WL 1824977, ¶ 34. We find that Hennessey's testimony was admissible under Evid.R. 703.

{¶ 26} Additionally, Hennessey testified that her interview began with her getting to know B.C. and information about B.C.'s family. After Hennessey learned of the disclosures, it allowed her to make referrals.

STATE: During the course of the interview, did you learn the information that you required to determine what referrals you needed to make for B.C.?
HENNESSEY: Yes. Based on the interview, she was referred to the Cleveland Care Clinic.
STATE: What is the Cleveland Care Clinic?
HENNESSEY: It's where she can go and get a medical assessment, like a physical exam, and then also another interview with the professional. They're trained as well.
STATE: Is the Care Clinic focused on a particular area of medical?
HENNESSEY: They do. They focus on sexual assault, sexual abuse cases.
STATE: That referral was based on your interview of B.C.?
HENNESSEY: Yes, based on the information she shared with me.
STATE: Where is the Care Clinic run through?
HENNESSEY: The Cleveland Clinic, the main campus, substance abuse.
STATE: Did you make any other referrals?
HENNESSEY: The family was referred to Cleveland Rape Crisis as well.

(Tr. 324-325.)

{¶ 27} Permissible testimony for purposes of medical diagnosis or treatment fall under Evid.R. 803(4). It states,

[S]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Pursuant to Ohio case law and Evid.R. 803(4), statements made by a social worker for the purposes of medical diagnosis or treatment are admissible. State v. Boston , 46 Ohio St.3d 108, 545 N.E.2d 1220 (1989), citing State v. Krzywkowski , 8th Dist. Cuyahoga No. 80392, 2002-Ohio-4438, 2002 WL 1987257, ¶ 120. Hennessey's role was important in determining what type of subsequent treatment was necessary for B.C. We find that Hennessey's role was pertinent to medical treatment or diagnosis, and thus her testimony falls clearly within the exception to the hearsay rule under Evid.R. 803(4). Id. at ¶ 123.

{¶ 28} The state asked Loyke,

[T]hrough that specialized training and through that years of experience in all of those patients, have you learned things about sexual assault, child sexual assault victims in particular that you would not have suspected prior to your experience and training?

(Tr. 354.) Loyke responded,

I would have to say yes, that I have been part of the process of every individual child that presents with sexual assault has a story to tell and has a different story to tell. There is no way that we could systemically categorize every situation that we would see. It is important that they tell their story and it's important that we believe them.

Id.

{¶ 29} Carter argues that Loyke's statement about the importance of believing a child who tells their sexual assault story was prejudicial and significantly impacted his trial. The SANE nurse was asked whether she made any recommendations in B.C.'s case. In response, she stated:

Yes. I recommended that she continue with counseling. I reassured her that the exam was normal, but that even though it was normal, we still believe her disclosure and that we will be following through with whatever is required on our end to help her along.

(Tr. 367-368.)

{¶ 30} Like the social worker, Loyke testified that she recommended counseling. However, unlike Hennessey, Loyke testified that she believed B.C.'s disclosures.

This court has held that it is reversible error to admit testimony from a purported expert or lay witness attesting to the believability of another's statements. Boston , 46 Ohio St.3d 108, 128, 545 N.E.2d 1220 (1989). "[I]n our system of justice it is the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of witnesses." State v. Pizzillo , 7th Dist. Carroll No. 746, 2002-Ohio-446 [2002 WL 75936], citing Boston at 129 [545 N.E.2d 1220].

State v. Wilson , 8th Dist. Cuyahoga No. 104333, 2017-Ohio-2980, 2017 WL 2293074, ¶ 48.

{¶ 31} However, Carter did not object to Loyke's testimony at trial.

The trial court has broad discretion in the admission of evidence and, unless it has clearly abused its discretion and the defendant has been materially prejudiced thereby, this court should be slow to interfere. State v. Cooper , 8th Dist. Cuyahoga No. 86437, 2006-Ohio-817 [2006 WL 439906], citing State v. Hymore , 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). Moreover, if trial counsel fails to object to the admission of certain evidence or testimony, the objection is waived unless there is plain error in the admission. To prevail under a plain error analysis, a defendant bears the burden of demonstrating that, but for the error, the outcome of the trial clearly would have been different. State v. Alexander , 8th Cuyahoga No. 87109, 2006-Ohio-4760 [2006 WL 2627440] ; see Crim.R. 52(B). Notice of plain error "is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. , citing State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).

State v. Mallette , 8th Dist. Cuyahoga No. 87984, 2007-Ohio-715, 2007 WL 530187, ¶ 12.

{¶ 32} Upon review, we find that Carter has not demonstrated that but for Loyke's testimony, the outcome of the trial would have been different. B.C., the victim, testified and the jury was able to evaluate her credibility. Carter's third assignment of error is overruled.

V. Prosecutorial Misconduct

A. Standard of Review

{¶ 33} In general,

[t]he test for prosecutorial misconduct during closing argument is whether the remarks made by the prosecutor were improper and, if so, whether they prejudicially affected a substantial right of the accused.
State v. White , 82 Ohio St.3d 16, 22, 1998-Ohio-363, 693 N.E.2d 772 (1998). For this determination, an appellate court should consider the nature of the remarks, whether an objection was made by counsel, whether corrective instructions were given by the court, and the strength of the evidence against the defendant. State v. Braxton , 102 Ohio App.3d 28, 41, 656 N.E.2d 970 (8th Dist.1995). Additionally, "isolated comments by a prosecutor are not to be taken out of context and given their most damaging meaning." State v. Gapen , 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, citing Donnelly v. DeChristoforo , 416 U.S. 637, 647, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).

State v. Harris , 8th Dist., 2017-Ohio-2751, 90 N.E.3d 342, ¶ 84.

B. Law and Analysis

{¶ 34} In Carter's fourth assignment of error, he argues that he was denied due process and a fair and impartial trial based on prosecutorial misconduct. In their closing argument, the state referred to the testimonies of Loyke and Hennessey. Carter argues that references to these testimonies is impermissible. However, "a prosecutor has considerable latitude in his closing argument." State v. Maurer , 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). The state is largely free to comment on "what the evidence has shown and what reasonable inferences may be drawn therefrom." State v. Lott , 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). Id. "In order for this Court to reverse a conviction on the grounds of prosecutorial misconduct, we must find that (1) the remarks were improper and (2) that they prejudicially effected substantial rights of the defendant. State v. Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883." State v. Elliott , 8th Dist. Cuyahoga No. 91999, 2009-Ohio-5816, 2009 WL 3647081, ¶ 23.

{¶ 35} Carter also contends that the state "vouched for" B.C.'s credibility during the closing argument. However, the Ohio Supreme Court has held, "the effect of counsel's misconduct 'must be considered in the light of the whole case.' " State v. Durr , 58 Ohio St.3d 86, 94, 568 N.E.2d 674 (1991), quoting Maurer , 15 Ohio St.3d 239, 266, 473 N.E.2d 768 (1984).

The "touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips , 455 U.S. 209, 219, 102 S.Ct. 940, 947, 71 L.Ed.2d 78 (1982). As such, the defendant must show that there is a reasonable probability that, but for the prosecutor's misconduct, the result of the proceeding would have been different. State v. Loza , 71 Ohio St.3d 61, 641 N.E.2d 1082 (1994).

Id. at ¶ 25.

"[T]he conduct of a prosecuting attorney during trial cannot be made a ground of error unless that conduct deprives the defendant of a fair trial." Id. (Other citations omitted.) Both the defense and prosecution have wide latitude in summation. State v. Lott , 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). "Prosecutors must avoid insinuations and assertions calculated to mislead. They may not express their personal beliefs or opinions regarding the guilt of the accused, and they may not allude to matters not supported by admissible evidence." Id. at 166 [555 N.E.2d 293].

Id. at ¶ 26.

{¶ 36} Carter did not object to the prosecutor's closing argument at trial. "Where the defendant fails to object to the alleged misconduct, he waives all but plain error." Lott , 51 Ohio St.3d at 167, 555 N.E.2d 293 (1990), citing State v. Johnson , 46 Ohio St.3d 96, 102, 545 N.E.2d 636, 642 (1989) ;

State v. Salahuddin , 8th Dist. Cuyahoga No. 90874, 2009-Ohio-466, 2009 WL 270498, ¶ 55, citing State v. Slagle , 65 Ohio St.3d 597, 604, 605 N.E.2d 916 (1992).

"Pursuant to Crim.R. 52(B), plain error or defects which affect substantial rights may be grounds for reversal even though they were not brought to the attention of the trial court. Notice of plain error, however, applies only under exceptional circumstances to prevent a manifest miscarriage of justice. State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus. Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise. State v. Moreland , 50 Ohio St.3d 58, 62, 552 N.E.2d 894, 899 (1990)." State v. Phillips , 74 Ohio St.3d 72, 83, 1995-Ohio-171, 656 N.E.2d 643 (1995).

Elliott , 8th Dist. Cuyahoga No. 91999, 2009-Ohio-5816, ¶ 29.

{¶ 37} Carter does not demonstrate that but for the state's statements the outcome of the trial would have been any different. As established in assignment of error one, there was sufficient evidence to convict Carter, and no evidence that his guilt was determined by the prosecutor's arguments. Therefore, Carter's fourth assignment of error is overruled.

VI. Admissibility of Evidence

A. Standard of Review

{¶ 38} "A trial court has broad discretion in admitting or excluding evidence, and a trial court's ruling on the admissibility of evidence will be upheld absent an abuse of discretion and a showing of material prejudice." (Internal citations omitted.) State v. Peterson , 8th Dist. Cuyahoga Nos. 100897 and 100899, 2015-Ohio-1013, 2015 WL 1249680, ¶ 139. "An abuse of discretion implies an arbitrary, unreasonable, or unconscionable attitude on the part of the trial court. Blakemore , 5 Ohio St.3d 217, 219, 5 Ohio B. 481, 450 N.E.2d 1140." Id. at ¶ 173.

B. Law and Analysis

{¶ 39} In Carter's sixth assignment of error, he argues that the trial court erred in allowing the admission of B.C.'s text message into evidence. We will review it before his fifth assignment of error. "Hearsay is by definition a 'statement,' defined as '(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion.' Evid.R. 801(A)." State v. Dye , 8th Dist. Cuyahoga No. 103907, 2016-Ohio-8044, 2016 WL 7158739, ¶ 33. Carter contends that the text messages were an out-of-court statement being offered for the truth of the matter asserted, and therefore hearsay. We find that Carter's claims have no merit. The text messages were offered into evidence to explain how B.C.'s mother became aware of Carter molesting B.C.

Evid.R. 901 governs the authentication of demonstrative evidence such as recordings of telephone conversations and text messages. The threshold for admission is quite low, as the proponent need only submit "evidence sufficient to support a finding that the matter in question is what its proponent claims." Evid.R. 901(A). This means that "the proponent must present foundational evidence that is sufficient to constitute a rational basis for a jury to decide that the primary evidence is what its proponent claims it to be." State v. Payton , 4th Dist. Ross No. 01CA2606, 2002-Ohio-508 [2002 WL 184922]. A proponent may demonstrate genuineness or authenticity through direct or circumstantial evidence. State v. Williams , 64 Ohio App.2d 271, 274, 413 N.E.2d 1212 (8th Dist.1979).

State v. Glenn , 8th Dist. Cuyahoga No. 97314, 2012-Ohio-3075, 2012 WL 2580773, ¶ 25.

{¶ 40} In addition,

[m]ultiple courts have held that text messages received on a defendant's cell phone are not hearsay when the messages are not offered for the truth of the matter asserted. See State v. Crocker , 2015-Ohio-2528, 38 N.E.3d 369 (4th Dist.) (incriminating text messages received on the defendant's cell phone were extracted by a forensic computer specialist from the Ohio State Highway Patrol and the court held the messages were not hearsay because they were not offered to prove the truth of the matter asserted, but rather to explain the defendant's activities and give context to the defendant's responses); State v. Miller , 1st Dist. Hamilton No. C-130774, 2015-Ohio-330 [2015 WL 408259], at ¶ 17 (text messages sent to the defendant were not hearsay because they were not offered for the truth of the matter asserted, because they "put in context [defendant's] statements about being angry").

State v. Norris , 2d Dist. Clark No. 2015-CA-22, 2016-Ohio-5729, 76 N.E.3d 405, ¶ 32.

{¶ 41} Also,

before text messages may be admitted, they must be properly authenticated. State v. Irwin , 2d Dist. Montgomery No. 26224, 2015-Ohio-195 [2015 WL 302811], at ¶ 20. The threshold standard for authenticating evidence is low. State v. Wiley , 2d Dist. Darke No. 2011 CA 8, 2012-Ohio-512 [2012 WL 443977], ¶ 11. In this regard, " Evid.R. 901(A) requires, as a condition precedent to the admissibility of evidence, a showing that the matter in question is what it purports to be." State v. Simmons , 2d Dist. Montgomery No. 24009, 2011-Ohio-2068 [2011 WL 1646819], ¶ 12. Evid.R. 901(B) provides examples of numerous ways that the authentication requirement may be satisfied, the most common of which is testimony that a matter is what it is claimed to be under Evid.R. 901(B)(1). State v. Renner , 2d Dist. Montgomery No. 25514, 2013-Ohio-5463 [2013 WL 6576714], ¶ 30.

Id. at ¶ 33.

{¶ 42} However,

" '[i]n most cases involving electronic print media, i.e., texts, instant messaging, and e-mails, the photographs taken of the print media or the printouts of those conversations are authenticated, introduced, and received into evidence through the testimony of the recipient of the messages.' " Irwin at ¶ 21, quoting State v. Roseberry , 197 Ohio App.3d 256, 2011-Ohio-5921, 967 N.E.2d 233, at ¶ 75 (8th Dist.). In Roseberry , the Eighth District Court of Appeals noted that the state could have properly admitted text messages from the defendant through the victim's testimony, "because she was the recipient of the text messages, had personal knowledge of the content, and could [identify] the sender of the messages." Roseberry at ¶ 75.

Id. at ¶ 34.

{¶ 43} Carter also argues that B.C.'s text messages were inadmissible because the messages were an out-of-court statement being offered for the truth of the matter asserted.

Pursuant to Evid.R. 801(D)(1)(b), a declarant's prior consistent statement is not hearsay if (1) the declarant testifies at trial and is subject to cross-examination, (2) the statement is consistent with his prior testimony, and (3) it is offered to rebut an express or implied charge of recent fabrication. Such statements may be used as substantive evidence.

State v. Pritchard , 8th Dist. Cuyahoga No. 78497, 2001 WL 898427 (Aug. 2, 2001). B.C. authenticated the text messages she sent to S.C. by testifying that the text messages proffered as evidence were indeed the ones she sent. The text messages were not entered into evidence as proof that Carter molested his daughter, but rather to show how B.C.'s mother became aware of the alleged molestation. Therefore, Carter's sixth assignment of error is overruled.

VII. Ineffective Assistance of Counsel

A. Standard of Review

{¶ 44} Reversal of a conviction for ineffective assistance of counsel

requires a defendant to show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. State v. Smith , 89 Ohio St.3d 323, 327, 731 N.E.2d 645 (2000), citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defense counsel's performance must fall below an objective standard of reasonableness to be deficient in terms of ineffective assistance of counsel. See State v. Bradley , 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Moreover, the defendant must show that there exists a reasonable probability that, were it not for counsel's errors, the results of the proceeding would have been different. State v. White , 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998).

State v. Price , 8th Dist. Cuyahoga No. 103282, 2016-Ohio-711, 2016 WL 764085, ¶ 17.

B. Law and Analysis

{¶ 45} In Carter's fifth assignment of error, he argues that he was denied effective assistance of counsel.

To establish ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel's errors, the proceeding's result would have been different. Strickland v. Washington , 466 U.S. at 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Ohio v.Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.

Id. at ¶ 18.

In evaluating a claim of ineffective assistance of counsel, a court must give great deference to counsel's performance. Strickland at 689 [104 S.Ct. 2052]. "A reviewing court will strongly presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." State v. Pawlak , 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175 [2014 WL 2167887], ¶ 69.

Id. at ¶ 19.

{¶ 46} Carter contends that defense counsel was ineffective for failing to object and allowing the irrelevant and prejudicial testimony of Loyke and Hennessey. We find Carter's argument lacks merit. We decided in Carter's third assignment of error that Hennessey's testimony was admissible and pertinent to the charge, and Loyke's testimony did not affect the outcome of the trial.

[W]e find that defense counsel's decisions not to object constituted trial strategy. See State v. Gross , 97 Ohio St.3d 121, 150-151, 2002-Ohio-5524, 776 N.E.2d 1061, citing State v. Hartman , 93 Ohio St.3d 274, 296, 754 N.E.2d 1150 [ (2001) ] (failure to object can be legitimate tactical decision); State v. Issa , 93 Ohio St.3d 49, 68, 752 N.E.2d 904 [ (2001) ] , citing State v. Taylor , 78 Ohio St.3d 15, 676 N.E.2d 82 (1997) ("Counsel is certainly not deficient for failing to raise a meritless issue"). A failure to object, in and of itself, does not rise to the level of ineffective assistance of counsel. "Because 'objections tend to disrupt the flow of a trial, [and] are considered technical and bothersome by the fact-finder,' Jacobs , Ohio Evidence (1989), at iii-iv, competent counsel may reasonably hesitate to object * * *." State v. Campbell , 69 Ohio St.3d 38, 53, 630 N.E.2d 339, 352 (1994). Accordingly, we find defense counsel's decision not to object constituted a legitimate trial tactic. Such a decision, therefore, falls within the realm of reasonable professional assistance and is not ineffective.

State v. Jackson , 8th Dist. Cuyahoga No. 86105, 2006-Ohio-174, 2006 WL 134813, ¶ 88.

{¶ 47} Carter also argues that defense counsel was ineffective for failing to object to the use and admission into evidence of B.C.'s text allegation that she was molested by Carter. "A defense counsel's failure to object is not ineffective assistance of counsel if the evidence is admissible." As the Supreme Court of Ohio stated, "Counsel is certainly not deficient for failing to raise a meritless issue. State v. Taylor , 78 Ohio St.3d 15, 31, 1997-Ohio-243, 676 N.E.2d 82." State v. Jackson , 8th Dist. Cuyahoga No. 86105, 2006-Ohio-174, 2006 WL 134813, ¶ 87. The text message sent from B.C. to S.C. was admissible.

{¶ 48} Carter contends that defense counsel was ineffective for failing to attempt to admit into evidence the results of a lie detector test that indicated that Carter was telling the truth. "The results of a polygraph examination may be admissible at trial only under limited conditions. Those conditions were enunciated by the Ohio Supreme Court in State v. Souel , 53 Ohio St.2d 123, 372 N.E.2d 1318 (1978)." State v. Banner , 8th Dist. Cuyahoga No. 94078, 2010-Ohio-5592, 2010 WL 4684726, ¶ 20.

Absent meeting these specific conditions, neither party may introduce the result of such an examination. In State v. Bates , 8th Dist. Cuyahoga No. 43904 [1982 WL 5268] (Apr. 1, 1982), we stated that since "the results of polygraph tests are inadmissible and precluded from consideration by the jury, the mere offer or refusal to undergo such test should also be excluded because unwarranted inferences are likely to be drawn as to defendant's guilt or innocence." Id. , citing State v. Hegel , 9 Ohio App.2d 12, 222 N.E.2d 666 (1964) ; State v. Smith , 113 Ohio App. 461, 465, 178 N.E.2d 605 (1960).

Id. at ¶ 21. "It is well established in Ohio that the results of a polygraph test are not admissible to show the guilt or innocence of the accused." (Internal citations omitted.) State v. Yuhas , 8th Dist. Cuyahoga No. 36219, 1977 WL 201099 (June 9, 1977). Because the results of Carter's polygraph test are inadmissible to demonstrate his guilt or innocence, his argument is baseless.

{¶ 49} Carter argues that his defense counsel was ineffective because counsel failed to object to the state's closing arguments.

However, a reasonable attorney may decide not to interrupt his opponent's closing argument. State v. Keene , 81 Ohio St.3d 646, 668, 693 N.E.2d 246 (1998). Objections can " 'disrupt the flow of a trial' " and " 'are considered technical and bothersome by the factfinder.' " State v. Campbell , 69 Ohio St.3d 38, 53, 630 N.E.2d 339 (1994), quoting Jacobs, Ohio Evidence (1989) iii-iv. A decision not to interrupt during closing arguments reflects an "objective standard of reasonable representation."
Ohio v.Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus.

State v. Myers , 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 153. Therefore, defense counsel was not ineffective, and Carter's fifth assignment of error is overruled.

{¶ 50} Judgment is affirmed.

MARY EILEEN KILBANE, P.J., and EILEEN T. GALLAGHER, J., CONCUR


source: Caselaw Access Project

author: PATRICIA ANN BLACKMON, J.:

license: Public Domain

text:
    MAGNUS INTERNATIONAL GROUP, INC., et al., Plaintiffs-Appellees v. Scott FORSTER, Defendant-Appellant
    No. 105948
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: June 7, 2018
    Alexandra Forkosh, Matthew Chiricosta, Christopher S. Williams, Calfee, Halter & Griswold, L.L.P., 1405 East 6th Street, Cleveland, Ohio 44114, ATTORNEYS FOR APPELLANT
    John F. Hill, Amanda M. Gatti, Buckingham, Doolittle & Burroughs, L.L.C., 3800 Embassy Parkway, Suite 300, Akron, Ohio 44333, ATTORNEYS FOR APPELLEES For Magnus International Group, Inc., Hardy Animal Nutrition, L.L.C., Hardy Realty, L.L.C., Hardy Industrial Technologies, L.L.C., Hardy Technical Services, L.L.C., and 300 MPH Acres, L.L.C.
    Mark R. Koberna, Rodd A. Sanders, Sonkin & Koberna Co., L.L.C., 3401 Enterprise Parkway, Suite 400, Beachwood, Ohio 44122, Matthew Romano, Law Office of Matthew S. Romano, 7100 E. Pleasant Valley Road, # 110, Independence, Ohio 44131, For Eric Lofquist
    BEFORE: Blackmon, J., Stewart, P.J., and Jones, J.
    JOURNAL ENTRY AND OPINION
   PATRICIA ANN BLACKMON, J.:

{¶ 1} Defendant-appellant, Scott Forster ("Forster"), appeals from the order of the trial court that denied his motion for advancement of attorney fees and litigation expenses in defense of litigation commenced by plaintiffs-appellees, Magnus International Group, Inc. ("Magnus"), various affiliated companies, and Eric Lofquist ("Lofquist") (collectively referred to as "plaintiffs"). Forster assigns the following error for our review:

The trial court erred in denying appellant Scott Forster's motion for an order entitling him to advancement of his litigation expenses pursuant to R.C.1701.13(E)(5)(a).

{¶ 2} Having reviewed the record and pertinent law, we reverse and remand for further proceedings consistent with this opinion. The apposite facts follow.

{¶ 3} Magnus is a closely held corporation formed in 2007 by Lofquist and Forster as equal owners. Together with the affiliated companies, Magnus develops and manufactures animal food ingredients.

{¶ 4} On March 12, 2017, Lofquist, the president of Magnus, and the affiliated companies, filed an eight-claim complaint against Forster. In relevant part, plaintiffs alleged that at all relevant times, Lofquist and Forster were "co-owners, officers, directors and employees" of Magnus and the affiliated companies, and that Forster converted corporate checks and misappropriated substantial corporate funds for his sole benefit. Plaintiffs set forth claims for breach of fiduciary duty, misrepresentation, conversion, civil damages for theft, and unjust enrichment. They also sought injunctive relief barring Forster from the companies, imposing a constructive trust, and ordering an accounting, and prayed for damages, punitive damages and/or treble damages, and attorney fees.

{¶ 5} Forster denied wrongdoing and asserted that Lofquist assented to his receipt of the disputed funds in order to "true up," or make up a payment disparity caused by Lofquist's prior withdrawals of corporate funds. Forster also maintained that Lofquist filed the instant litigation in order to force Forster to sell his 50% interest in the companies at a discount.

Forster set forth various individual and derivative counterclaims against Lofquist alleging breach of fiduciary duty, wrongful termination, breach of contract, defamation, and abuse of process, and he prayed for judicial dissolution of Magnus.

{¶ 6} On June 2, 2017, Forster filed a motion for advancement of attorney fees and litigation expenses in defense of Magnus' complaint. He argued that advancement was mandatory under R.C. 1701.13(E)(5)(a) because Magnus did not disclaim advancement rights in its articles or regulations. Forster also asserted that he complied with all statutory preconditions for advancement, including a demand, and an agreement to "reasonably cooperate" with Magnus and to "repay the amounts advanced if it is proved by clear and convincing evidence" that his actions or omissions were "undertaken with deliberate intent or reckless disregard for the best interests of Magnus." In opposition, Magnus asserted that there was no right to advancement because it filed its complaint "by and in the right of the corporation" against Forster for his own alleged misconduct, and did not sue him simply "by reason of the fact" that he was a director. Additionally, Magnus cited to discovery issues and asserted that Forster was not reasonably cooperating with Magnus, as required in order to obtain advancement under R.C. 1701.13(E)(5)(a).

{¶ 7} Following a hearing on the matter, the trial court denied Forster's motion for advancement. The court determined that advancement was not warranted because the matter "is an action by or in the right of the corporation, and it is not 'by reason of the fact' that Forster was associated with the corporation." The court held that the plain language of the statute indicates that advancement is not appropriate in actions where the corporation is suing the director. The court distinguished this matter from Miller v. Miller , 132 Ohio St.3d 424, 2012-Ohio-2928, 973 N.E.2d 228, and noted that "Forster's counsel admitted in open court that Forster cashed corporate checks for his personal use that were made out to both Lofquist and Forster."

R.C. 1701.13(E)(5)

{¶ 8} Within his sole assignment of error, Forster argues that he is entitled to advancement of expenses and fees incurred in defending the claims of Magnus' complaint by operation of R.C. 1701.13(E)(5)(a), which provides for mandatory advancement of such sums unless disclaimed in the articles of incorporation. In opposition, Magnus argues that advancement is not available because Forster was not sued as the result of a "director's act or omission," but rather, was sued as an employee, who happens to also be a director, "over his theft of corporate funds."

{¶ 9} Preliminarily, we note that a motion hearing panel of this court sua sponte dismissed this appeal for lack of a final, appealable order. On reconsideration, Forster's appeal was reinstated and the question of whether the trial court's ruling is a final, appealable order was referred to this merit panel. This panel concludes that the trial court's denial of advancement is a final, appealable order under R.C. 2505.02(B)(4) because this ruling: (1) denied a provisional remedy; and (2) both determined the action with respect to the provisional remedy and prevented a judgment for Forster on the provisional remedy. Accord Miller at ¶ 38 ("postponement of the determination whether [right to advancement of fees] exists would render the right meaningless."). Moreover, this matter is distinguishable from MD Acquisition, L.L.C. v. Myers , 173 Ohio App.3d 247, 2007-Ohio-3521, 878 N.E.2d 37 (10th Dist.), which involved the granting of a motion for advancement. Therefore, we grant motion No. 508770, in which Forster sought reconsideration of the dismissal, and we reinstate the appeal.

{¶ 10} Next, with regard to our standard of review, the sole question presented herein is whether Forster is entitled to advancement under R.C. 1701.13(E)(5). As such, the issue involves statutory construction and raises a question of law that we review de novo. See Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 25 ; Lang v. Dir., Ohio Dept. of Job & Family Servs. , 134 Ohio St.3d 296, 2012-Ohio-5366, 982 N.E.2d 636, ¶ 12 ; accord Dorsey v. Fed. Ins. Co. , 154 Ohio App.3d 568, 2003-Ohio-5144, 798 N.E.2d 47, ¶ 12-13 (7th Dist.).

{¶ 11} In this case, the trial court denied Forster's motion for advancement, stating, in relevant part as follows:

Advancement only applies to director's act or omission that is the subject of an action, suit, or proceeding referred to in R.C. 1701.13(E)(1) or (2), "other than an action by or in the right of the corporation, by reason of the fact that the person is or was director, officer, employee, or agent." R.C. 1701.13(E)(1). The plain language of the statute indicates that advancement is not appropriate in actions where corporation is suing director. * * *
Regardless of whether Forster was acting in his role as director, officer, employee, or agent at the time that these actions occurred, this is an action by and in the right of the corporation and it is not "by reason of the fact" that Forster was associated with the corporation that this lawsuit has been brought. The facts in this case are distinguishable from those in Miller , where the director in question was arguably acting in the interest or on behalf of the corporation. This lawsuit has been brought due to Forster's alleged theft and conversion of corporate funds and property for his personal use for his rare car collection, home maintenance, and landscaping, among other things.

{¶ 12} As mentioned, R.C. 1701.13(E)(5) provides for advancement, or immediate recoupment of funds prior to the outcome on the merits, of expenses including attorney fees for a director's acts or omissions, unless such recovery is disclaimed in the corporations articles or regulations. Advancement serves as an " 'inducement for attracting capable individuals into corporate service.' " Miller at ¶ 23, quoting Homestore, Inc. v. Tafeen , 888 A.2d 204, 211 (Del.2005). Permissive advancement is governed by R.C. 1701.13(E)(5)(b). Mandatory advancement is governed by R.C. 1701.13(E)(5)(a), which states:

(a) Unless at the time of a director's act or omission that is the subject of an action, suit, or proceeding referred to in division (E)(1) or (2) of this section, the articles or the regulations of a corporation state, by specific reference to this division, that the provisions of this division do not apply to the corporation and unless the only liability asserted against a director in an action, suit, or proceeding referred to in division (E)(1) or (2) of this section is pursuant to section 1701.95 of the Revised Code, expenses, including attorney's fees, incurred by a director in defending the action, suit, or proceeding shall be paid by the corporation as they are incurred, in advance of the final disposition of the action, suit, or proceeding, upon receipt of an undertaking by or on behalf of the director in which the director agrees to do both of the following:
(i) Repay that amount if it is proved by clear and convincing evidence in a court of competent jurisdiction that the director's action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the corporation or undertaken with reckless disregard for the best interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning the action, suit, or proceeding. (Emphasis added.)

{¶ 13} In Miller , the plaintiffs' complaint alleged that the defendant director usurped a corporate business opportunity and breached his fiduciary duties by negotiating a separate contract for plumbing products sales with one of plaintiffs' suppliers. The parties' agreement did not contain any provision disclaiming or mentioning advancements.

{¶ 14} The trial court held that the defendant was entitled to advancement of attorney fees under R.C. 1701.13(E)(5)(a). A divided panel of the Eleventh District reversed, reasoning that the defendant was sued not as a result of an "act or omission" on behalf of the corporation as required under R.C. 1701.13(E)(5)(a), but for his separate actions in alleged breach of his fiduciary duties. Miller v. Miller , 190 Ohio App.3d 458, 2010-Ohio-5662, 942 N.E.2d 438, ¶ 49-53 (11th Dist.). The Eleventh District also held that because R.C. 1701.13(E)(5)(a) refers to the indemnification provisions in R.C. 1701.13(E)(1) and (2), exclusionary language contained in these provisions must be considered in determining an advancement claim. Id.

{¶ 15} R.C. 1701.13(E)(1) pertains to indemnification for the defense of litigation and states,

(1) A corporation may indemnify or agree to indemnify any person who was or is a party, or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative, other than an action by or in the right of the corporation, by reason of the fact that the person is or was a director, officer, employee, or agent of the corporation, * * * against expenses, including attorney's fees, judgments, fines, and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit, or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation * * *[.] (Emphasis added.)

R.C. 1701.13(E)(2) pertains to indemnification for procuring a judgment in favor of the corporation and contains similar exclusionary language.

{¶ 16} In Miller , the court of appeals applied this exclusionary language and held that the defendant's actions were not taken "on behalf of the corporation" and were not "in good faith and in a manner * * * reasonably believed to be in or not opposed to the best interests of the corporation," so advancement was not mandated. Id. , 190 Ohio App.3d 458, 2010-Ohio-5662, 942 N.E.2d 438, ¶ 49-53.

{¶ 17} The Ohio Supreme Court reversed. Miller , 132 Ohio St.3d 424, 2012-Ohio-2928, 973 N.E.2d 228. The court rejected the argument that a director's entitlement to advancements under R.C. 1701.13(E)(5) is dependent upon overcoming the exclusionary provisions set forth in R.C. 1701.13(E)(1) and (2), i.e., that he or she was sued "by reason of his or her corporate capacity" and "acted in good faith on behalf of the corporation." Id. at ¶ 35. Rather, the Ohio Supreme Court held that the advancement of fees is neither determined by nor dependent upon whether a director is entitled to indemnification under R.C. 1701.13(E)(1) and (2), explaining:

[T]he scope of an advancement proceeding "is limited to determining the issue of entitlement according to the corporation's advancement provisions." "Neither indemnification nor recoupment of sums previously advanced are appropriate for litigation" in such a proceeding. They necessarily are reserved for subsequent determination. (Internal quotes omitted.)

Id. at ¶ 35, quoting United States v. Stein , 452 F.Supp.2d 230, 271-272 (S.D.N.Y.2006).

{¶ 18} The Miller court additionally determined that advancement may not be "refused when the underlying litigation sets forth allegations of director's misconduct that if proven, would bar indemnification" because this would "make the advancement statute pointless." Id. at ¶ 38. The court held:

1. A corporation cannot avoid its duty to advance expenses to a director under R.C. 1701.13(E)(5)(a) by claiming that the director's alleged misconduct, if proven, would amount to a violation of his or her fiduciary duties and would therefore foreclose indemnification.
2. When a corporation has received from a director the undertaking described in R.C. 1701.13(E)(5)(a), the corporation is required to advance expenses to the director unless the corporation's articles or regulations specifically state that R.C. 1701.13(E) does not apply to the corporation.

Miller , 132 Ohio St.3d 424, 2012-Ohio-2928, 973 N.E.2d 228, paragraphs one and two of the syllabus.

{¶ 19} Similarly, in Westbrook v. Swiatek , 5th Dist. Delaware No. 2009 CAE 05 0048, 2010-Ohio-2868, 2010 WL 2521361, the court held that allegations against an officer for breach of his fiduciary duties to the parties' joint venture corporation (by obtaining favorable terms for a solo business venture) did not disqualify him from obtaining advancements. The court held that advancement and indemnification are two distinct rights, with each involving its own distinct analysis. The court stated:

By necessity, an officer's right to advancement must be determined before his or her ultimate right to indemnification. This reality is reflected in the corporate regulations at issue, which mandate advancement upon the officer's written promise to repay the money if certain findings are made in the underlying litigation. The record reflects that Westbrook voluntarily signed an undertaking that acknowledged his responsibility for repayment of advances if it was ultimately determined that he was not entitled to indemnification.

Id. at ¶ 40. Accord Caitlin Graham, Advancement of Legal Fees May Be More Than Corporations Bargained For: Miller v. Miller, 132 Ohio St.3d 424, 2012-Ohio-2928, 973 N.E.2d 228, 82 U.Cin.L.Rev. 306, 320 (2014) (noting that advancement and indemnification are two distinct rights and advancement is not dependent on right to indemnification).

{¶ 20} In accordance with the foregoing, and applying the rule as set forth by the Ohio Supreme Court in Miller , we conclude that the trial court erred in denying Forster's motion for advancement of attorney fees and expenses. We note that in this matter, the parties agree that articles of incorporation do not disclaim a director's right to advancement. Therefore, the advancement provisions set forth in R.C. 1701.13(E)(5) are applicable. Further, under Miller , the trial court erred insofar as it incorporated the requirements of R.C. 1701.13(E)(1) and (2), during its analysis of Forster's claim for advancement under R.C. 1701.13(E)(5), and finding that advancement was precluded under R.C. 1701.13(E)(1), because the underlying litigation was "an action by or in the right of the corporation," filed against Forster as the result of alleged wrongdoing, and not simply because of Forster's corporate title. Rather, under Miller , and R.C. 1701.13(E)(5)(a), unless advancement is disclaimed in the corporation's articles, the corporation is required to advance expenses to the director, once the corporation has received from a director the agreement set forth in R.C. 1701.13(E)(5)(a)(i) and (ii). Therefore, the allegations of misconduct, including breach of fiduciary duty, do not negate the operation of this statute. Additionally, Forster has tendered an agreement to repay and to cooperate with discovery as required under R.C. 1701.13(E)(5)(a)(i) and (ii). Accordingly, we conclude that Forster is eligible for advancement under R.C. 1701.13(E) in order to defend the claims raised in Magnus' complaint. However, we express no opinion as to the additional issue raised by Magnus regarding whether Forster is actually meeting his duty of reasonable cooperation with Magnus, as required under R.C. 1701.13(E)(5)(a).

{¶ 21} We recognize that in this matter, Forster has admitted that "he endorsed [Magnus] checks," and that due to Lofquist's allegedly getting "substantially ahead of Forster * * * [through] significant lump sum [withdrawals]," he was permitted to "true up these disparities." However, in Miller , similar issues of self-dealing were also presented, yet advancement was permitted, because the court noted that "the advancement of fees is neither determined by nor dependent upon whether a director is entitled to indemnification." Miller , 132 Ohio St.3d 424, 973 N.E.2d 228, at ¶ 36. Similarly, in Swiatek , the court recognized that:

Under some circumstances, such as here, a corporation may be reluctant to advance funds to an officer who is perceived by the corporation as being unfaithful, or fear the funds will never be paid back.

Id. , 2010-Ohio-2868 at ¶ 24.

{¶ 22} In response to these concerns, the Miller court stressed that the legislature had made its intent clear, and also sets forth the process for a corporation to avoid mandatory advancement. Id. at ¶ 48. The dissent, however, urged "the General Assembly to reexamine this statute and further clarify that when the corporation is suing the director and there can be no such cooperation, no fees need be advanced in such circumstances." Id. at ¶ 66 (O'Donnell, J., dissenting). To date, the legislature has not responded to this request.

{¶ 23} Additionally, we note that " 'advancement' is rather a Delaware Specialty." Internatl. Airport Ctrs., L.L.C. v. Citrin , 455 F.3d 749, 752 (7th Cir.2006). As noted in Miller :

The fundamental principle is that a company that undertakes to advance defense costs may not avoid that obligation by claiming that the litigation against its former employee for which the employee seeks advancement of defense costs accuses the employee of conduct that, if proved, would foreclose indemnification or establish a breach of the employment contract or of a fiduciary or other duty owed to the company.

Miller , 132 Ohio St.3d 424, 973 N.E.2d 228, ¶ 36, quoting Stein , 452 F.Supp.2d 230, 272. See also Reddy v. Electronics Data Sys. Corp. , Del.Chancery No. CIV.A. 19467, 2002 WL 1358761 (June 18, 2002), fn. 26. However, we recognize that Delaware is a permissive advancement state. Graham, 82 U.Cin.L.Rev. at 311.

{¶ 24} Finally, insofar as Magnus argues that Forster was not sued in his capacity as a director so operation of R.C. 1701.13(E)(5)(a) was not triggered herein, we note that the complaint does reference Forster's status as a "director" during "all relevant times." Moreover, a similar claim was rejected in Miller . Id. at ¶ 41.

{¶ 25} Judgment reversed, and matter is remanded for further proceedings consistent with this opinion.

MELODY J. STEWART, P.J., and

LARRY A. JONES, SR., J., CONCUR

      The affiliated companies are Hardy Animal Nutrition, L.L.C., Hardy Realty, L.L.C., Hardy Industrial Technologies, L.L.C., Hardy Technical Services, L.L.C., and 300 MPH Acres, L.L.C.

      Forster's request for dissolution was later withdrawn.


author: HORTON, J.

text:
    MANLEY ARCHITECTURE GROUP, LLC, Plaintiff-Appellee/Cross-Appellant, v. Steven A. SANTANELLO, Defendant-Appellant/Cross-Appellee.
    No. 16AP-825
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered June 7, 2018
    On brief: Olsheski Law Co., LPA, and Jessica L. Olsheski, Columbus, for appellee/cross-appellant. Argued: Jessica L. Olsheski.
    On brief: Kemp, Schaeffer & Rowe Co., LPA, Michael N. Schaeffer, Columbus, and Richard G. Murray, II, Columbus, for appellant/cross-appellee. Argued: Michael N. Schaeffer.
    DECISION
   HORTON, J.

{¶ 1} Manley Architecture Group, LLC ("MAG"), brought a breach of contract action against Dr. Steven Santanello in the Franklin County Court of Common Pleas seeking damages for unpaid architectural and construction fees. Santanello counterclaimed, alleging that MAG's failure to properly supervise and manage the construction breached the parties' agreement and violated R.C. 1345.01 et seq., the Ohio Consumer Sales Practices Act ("OCSPA"). After a bench trial, the trial court found that both parties had breached the agreement and dismissed the OCSPA claim. The trial court concluded that Santanello owed MAG $224,270.68 and offset that amount by $160,000 that MAG owed to Santanello, resulting in a net award of $64,270.68 due to MAG. The parties cross-appealed. For the reasons set forth below, we affirm in part and reverse in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} On January 22, 2004, MAG and Santanello entered into a written contract governing the architectural design and construction of a 5,800 square foot home, as well as a "stable with riding arena, sitework, pond, tennis court and outdoor pool," for an estimated total cost of $1.6 million. Patrick Manley, MAG's owner and architect, sent the agreement to Santanello, along with a cover letter that explained the cost saving option of having MAG operate as the "construction manager" instead of hiring a general contractor:

The enclosed information is representative of our residential proposals, and includes all the services normally required to properly complete the project. As we discussed, a typical architectural and engineering fee for a luxury home seems to fall in the range of 10-15% of the cost of construction. This is for a full set of services and would include managing the bidding and site visits during construction. My quotation for your home is well under that amount.
Regarding the construction management portion, we would work directly for you bidding out to the subcontractors and suppliers on your behalf, and managing the entire construction process. The advantage to this is we can typically save you approximately 10% to 12% over the cost of a general contractor. Added benefits are we have more involvement in the details from start to finish, you have access to all of the subcontractor bids and we can make sure the construction is performed properly.

{¶ 3} Several provisions of the contract detailed the option of having MAG operate as the construction manager. The architect's "scope of services" included the following two provisions:

Bidding Phase (Not required under Construction Management contract)
Provide Owner with a list of bidders who perform this type of work.
Meet with prospective bidders to explain design.
Answer questions from bidders.
Distribute drawings and other related information.
Construction Administration Phase (Not required under Construction Management contract)
Phone support for owner and contractor.
Assist in resolving on-site problems, conflicts and unknown conditions.
As-needed site visits during construction.
Review shop drawings.
Review contractor's payment requests.

{¶ 4} The architect's maximum fee was capped at 8.0 percent to 9.5 percent of the total construction cost. The "bidding phase" and "construction administration phase" services were included, and were not to exceed 0.5 percent and 1.5 percent of the total construction cost, respectively. However, if the "construction management" option were chosen, those services were deleted from the architect's fee, reducing it to a maximum of 6.0 percent to 7.5 percent of the total construction fee. Instead, 10 percent of the total construction cost was imposed for construction management:

Construction Management Fee : 10% of Construction Cost*
*Typical mark-up on material, equipment and labor, by custom remodeling homebuilders acting as General Contractor, normally runs between 20% to 25% of construction cost. Net savings on project, using construction management approach should save 10%-15% overall.

{¶ 5} The agreement also contained a provision governing payment:

Progress payments shall be made to the architect at the completion of each phase, or for services rendered at the end of each month, whichever occurs first. * * * In the unlikely event either party shall breach this agreement, the party at fault shall be responsible for all attorney's fees and expenses of the other party. Invoices shall be due and payable 30 days from the date of the invoice. Finance charges after the due date shall be 1½% per month (18% per annum).

(Mar. 1, 2016 Mot. of Def. for Partial Summ. Jgmt.; Aff. of Steven A. Santanello, Ex. A.)

{¶ 6} During construction, problems arose with the barn roof leaking and the water height in the pond, and Santanello stopped paying invoices submitted by MAG.

{¶ 7} A number of years after construction was finished, MAG sued Santanello for the unpaid fees. The first complaint that MAG filed stated causes of action for breach of contract, quantum meruit and unjust enrichment, but the latter two claims were time barred and omitted from an amended complaint. (May 28, 2015 Compl.; June 24, 2015 Am. Compl.) Santanello filed counterclaims for breach of contract, alleging that MAG had breached its obligation to properly oversee the construction of the pond and barn. (July 13, 2015 Answer.)

{¶ 8} The matter proceeded to a bench trial held on August 22-25, 2016, after which the trial court issued a decision stating findings of fact and conclusions of law. In its decision, the trial court stated that the term "construction management" in the parties' agreement was ambiguous because "the [parties'] exact expectations" regarding its scope were "only loosely defined." (Nov. 18, 2016 Decision at 2.) Thus, the trial court considered both the contents of the cover letter and the language of the parties' agreement to interpret the term. Id. The trial court emphasized MAG's statement in the cover letter that, as construction manager, it would be able to "make sure the construction is performed properly." (Decision at 3.) After reviewing several cases construing the term, the trial court concluded:

Considering all the evidence, including the credibility of the witnesses, this court finds that the construction management role these parties mutually agreed upon did not make Manley Architecture Group an insurer of the work of trade contractors such as the contractor who erected the barn and leaking roof. Manley Architecture Group did not obligate itself to, in essence, warrant or guarantee that all work by others would be "performed properly." Fairly read, the written contract documents made that clear to Dr. Santanello. Moreover, privity of contract ran between Dr. Santanello and individual contractors, even though Mr. Manley made some of the contracts as "agent" for Dr. Santanello. Because each contractor hired by Dr. Santanello remained responsible for their own performance, and any deficiencies in the work, ultimate responsibility for enforcing that work rested on the owner not Manley Architecture Group.
Nevertheless, because Manley Architecture Group assumed the overarching role of "construction manager," the parties plainly did contemplate that Manley would actively monitor ongoing work. * * * When problems arose, these parties agreed that Manley Architecture Group would alert Dr. Santanello in a timely manner. Practically speaking, if a contractor was not performing work as called for in the plans and specifications properly, Dr. Santanello had a right to expect notice from Manley so that the doctor could pursue appropriate remedial action with the contractor in question.

(Emphasis sic.) (Decision at 4.)

{¶ 9} After setting forth this interpretation, the trial court made the following rulings on the parties' claims. First, the trial court addressed MAG's claims for unpaid services under the parties' agreement. The trial court noted that the parties had stipulated that MAG had paid $55,577.68 to vendors for which it had not been reimbursed. The trial court found that an additional $27,179 in "architect design fees" for a racquetball court, a gazebo, and "construction management fees" were unpaid. (Decision at 5.) This amounted to "$82,756.68 for unpaid but earned professional fees and unreimbursed out-of-pocket expenses reasonably incurred" by MAG. Id. After calculating the interest rate for finance charges stated in the parties' agreement, the trial court concluded that MAG was owed a $141,514, for a total of $224,270.68. (Decision at 5 & 7.)

{¶ 10} Second, the trial court found that MAG did not breach its obligation when building the pond because it "was never mutually intended by the parties to be leak-proof, or to always maintain an essentially static water level as Dr. Santanello now desires." (Decision at 6.)

{¶ 11} Third, the trial court ruled on Santanello's counterclaim concerning the construction of the barn roof. After receiving an estimate to construct the barn and its roof for $265,000, Santanello hired Bill Williams to perform the construction without a written contract. The trial court found that MAG's architectural plans for the barn and roof were adequate. Williams used a proprietary manufactured barn roof system when constructing the barn. After installation, the roof immediately began to leak through a long valley in the roof and into an apartment in the upper level of the barn. In addition, flashing was installed incorrectly and vents specified in the drawings were missing.

{¶ 12} The trial court noted that Andy Raile, an expert witness who had examined the roof, testified that it was "not repairable and cannot be made fully watertight without complete removal and replacement." (Decision at 7-8.) The trial court made the following findings and rulings concerning Manley's performance and MAG's liability for the roof:

Initial installation of the barn roof occurred in August-September 2004. Mr. Manley testified that this roof was installed very, very quickly. Mr. Manley further acknowledged that getting up on a high roof like this one was not one of his favorite things to do. Perhaps due to the speed of initial installation, or the fact that getting up on a high roof made Mr. Manley uncomfortable, Manley Architecture Group did not closely inspect and monitor barn roof installation. Only after leaks began to appear did Manley closely examine the roof work, which is now conceded to have been deficiently done by Williams' crew.
Although Dr. Santanello was his own general contractor, and although Manley Architecture Group had recommended against even hiring Williams for the work because they thought his proposed contract price was too low, the court finds by a preponderance of the evidence that Manley Architecture Group itself fell short of its construction management responsibilities in monitoring installation of the barn roof. Mr. Manley did not perform (or have performed by some other person more comfortable working at height) any contemporaneous close-hand inspection as the roof was installed. Once the roof was completed and closed up, even Mr. Manley conceded that it was exceedingly difficult to go back and figure out why there were leaks, or precisely identify where they were located. More attention ought to have been given to these practicalities by Manley Architecture Group as the roof work was still being performed, because serious discrepancies in the roof would have been readily apparent to a trained observer.
The preponderance of evidence established that, in 2006 dollars, complete replacement of the barn roof would have cost roughly $120,000. With inflation, that figure is roughly $160,000 in 2016 prices. Recognizing Manley Architecture Group was not a guarantor of work by Williams, it nevertheless had construction management obligations that were not met. The lack of thorough, timely inspection by Manley allowed Williams' substandard work to escape detection when, had work been checked, correction of deficient work would have been much easier and less costly.
"To recover upon a breach of contract claim, a plaintiff must prove 'the existence of a contract, performance by the plaintiff, breach by the defendant, and damage or loss to the plaintiff.' " Jarupan v. Hanna , 173 Ohio App.3d 284, 2007-Ohio-5081, 878 N.E.2d 66 (10th Dist.) at ¶ 18 (quoting Powell v. Grant Med. Ctr. [ (2002) ], 148 Ohio App.3d 1, 10, 2002-Ohio-443, 771 N.E.2d 874 ) (additional citations omitted.) "In order to prove a breach by the defendant, a plaintiff must show that the defendant 'did not perform one or more of the terms of a contract.' " Jarupan at ¶ 18 (quoting Little Eagle Props. v. Ryan , 10th Dist. No. 03AP-923, 2004-Ohio-3830 [2004 WL 1607045], ¶ 15 ).

(Decision at 8-9.)

{¶ 13} Accordingly, the trial court awarded Santanello $160,000 in damages for the breach based on the defective roof. After offsetting that amount against the damages award to MAG on its breach of contract claim, the trial court concluded that a net of $64,270.68 was due to MAG.

{¶ 14} Fourth, the trial court dismissed Santanello's claim under the OCSPA.

{¶ 15} The parties filed cross-appeals concerning the trial court's award of damages to MAG under the agreement and the damages awarded for the barn roof. The rulings concerning the pond and MAG's OCSPA claim were not appealed. Santanello asserts the following assignments of error:

I. The trial court incorrectly applied the set off in 2016 as the damages giving rise to the set off occurred when the roof was installed in 2004. The court erred in not concluding that the set off should occur on the first date that Appellant [Santanello] suffered damage (2004) when the barn roof first began to leak.
II. The trial court erred in its finding that defendant owed plaintiff $55,557.68 for reimbursement of monies advanced by plaintiff/appellee because defendant/appellant was not contractually obligated to pay such sums under the contract between appellant and appellee and the court indicated that it was not making the damage award based upon [claims of] quantum meruit or unjust enrichment.

{¶ 16} MAG asserts the following cross-assignments of error:

A. The court erred when it allowed a set-off for the barn roof; any deficiency in the installation should have been borne by the roofing subcontractor and the general contractor, Defendant Santanello, not Mr. Manley.
B. The court erred when it calculated the barn roof set-off at $160,000. There was testimony that the amount of the set off should have been significantly less because the entire roof did not need to be replaced.
C. The court erred when it determined that the amount of the set-off was $160,000 because Defendant Santanello failed to mitigate his damages and seek redress with the barn roof contractor; instead he used the barn roof for ten years without making any repairs and only raised the issue of a complete barn roof replacement when Mr. Manley brought claims for breach of contract.
D. The court erred when it did not allow a reduction in the amount of the set-off for the use and enjoyment of the roof by Dr. Santanello.
E. The court erred when it found that there should be a set-off because the evidence showed that Defendant Santanello breached the contract first, thereby relieving Plaintiff of any contractual obligation whatsoever.

{¶ 17} For the reasons discussed below, we sustain Santanello's second assignment of error and MAG's first cross-assignment of error. All other assignments of error are overruled as moot.

II. STANDARD OF REVIEW

{¶ 18} A de novo standard of review applies to matters of law, including the interpretation and construction of written contracts. Long Beach Assn., Inc. v. Jones , 82 Ohio St.3d 574, 576, 697 N.E.2d 208 (1998). However, a manifest weight of the evidence standard applies to appellate review of a judgment entered after a bench trial. App.R. 12(C). Under this standard, a reviewing court must be "guided by a presumption that the findings of the trier-of-fact were indeed correct." Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). " 'Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence.' " Id. , quoting C. E. Morris Co. v. Foley Constr. Co. , 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).

III. ANALYSIS

{¶ 19} We first consider Santanello's second assignment of error, in which he asserts that the trial court erred when it ruled that he breached the parties' agreement. Santanello argues that the agreement did not obligate him to reimburse MAG for the $55,557.68 that MAG had advanced to subcontractors after he refused to pay them.

{¶ 20} " 'A contract is generally defined as a promise, or a set of promises, actionable upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration.' " Kostelnik v. Helper , 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc. , 436 F.Supp. 409, 414 (N.D.Ohio 1976). "A meeting of the minds as to the essential terms of the contract is a requirement to enforcing the contract." Id. at ¶ 16, citing Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations , 61 Ohio St.3d 366, 369, 575 N.E.2d 134 (1991). To be enforceable, a contract's terms "must be definite and certain." Episcopal Retirement Homes at 369, 575 N.E.2d 134, citing James Ward & Co. v. Wick Bros. & Co. , 17 Ohio St. 159, 164 (1867).

{¶ 21} "In construing any written instrument, the primary and paramount objective is to ascertain the intent of the parties. The general rule is that contracts should be construed so as to give effect to the intention of the parties." Aultman Hosp. Assn. v. Community Mut. Ins. Co. , 46 Ohio St.3d 51, 544 N.E.2d 920 (1989), citing Employers' Liab. Assur. Corp. v. Roehm , 99 Ohio St. 343, 344, 124 N.E. 223 (1919), syllabus; Skivolocki v. E. Ohio Gas Co. , 38 Ohio St.2d 244, 246, 313 N.E.2d 374 (1974), paragraph one of the syllabus. Parties are free to "contract for the terms they want, and the 'intent of the parties is presumed to reside in the language they chose to use in their agreement.' " Hope Academy Broadway Campus v. White Hat Mgt., L.L.C. , 145 Ohio St.3d 29, 2015-Ohio-3716, 46 N.E.3d 665, ¶ 35, quoting Graham v. Drydock Coal Co. , 76 Ohio St.3d 311, 313, 667 N.E.2d 949 (1996). "Intentions not expressed in the writing are deemed to have no existence and may not be shown by parol evidence." Aultman Hosp. Assn.

{¶ 22} Here, the parties' agreement contemplated two potential roles for MAG and Manley. Under the first option, the project would use a general contractor, and Manley would perform "construction administration" duties and oversee bidding. Under the other option, which Santanello opted for, Manley was the project's "construction manager." With this option, Santanello operated as his own general contractor and enjoyed a reduction in certain expenses. This option deleted the "bidding" and "construction administration" fees and purported to save the homeowner 10 to 15 percent over the typical cost of construction managed by a third party general contractor. With Santanello in that role, MAG charged a flat 10 percent fee for Manley to perform "construction management" services.

{¶ 23} As the trial court noted, both MAG's breach of contract claim and Santanello's counterclaim concern the scope of the "construction management" services under the agreement. The first question is whether this role authorized MAG to advance fees to subcontractors after Santanello refused to pay them and then hold Santanello liable for those advances. It is undisputed that Santanello operated as his own general contractor. As the trial court stated, "privity of contract ran between Dr. Santanello and individual contractors," as he was the one who actually hired them. (Nov. 18, 2016 Decision at 4.)

{¶ 24} However, our de novo review of the contract reveals no provision that obligated Santanello to pay MAG for fees advanced to subcontractors that Santanello had refused to pay. The trial court simply stated that it found "by a preponderance of the evidence that [Manley] was not paid the full amount due under the parties' contract," with no mention of what provision of the contract Santanello breached by failing to reimburse Manley for the $55,577 in advances to trade contractors. (Decision at 5.) The trial court simply referred to "unpaid but earned professional fees and unreimbursed out-of-pocket expenses" as the basis for the award. Id. The agreement's description of "reimbursable expenses," which includes "[b]lueprints, mileage, faxes, etc. estimated at: $2,000.00" cannot be read to reflect an intent to include advances to subcontractors for building fees totaling tens of thousands of dollars. (Aff. of Steven A. Santanello, Ex. A.)

{¶ 25} Finding that the "construction management" role was "only loosely defined" under the agreement, the trial court decided that the term was ambiguous, and decided to incorporate language from the cover letter into the agreement in order to define the role. (Nov. 18, 2016 Decision at 2.) It is acceptable, of course, to consult extrinsic evidence to determine the meaning of an ambiguous contract term or provision. "A court will resort to extrinsic evidence in its effort to give effect to the parties' intentions only where the language is unclear or ambiguous, or where the circumstances surrounding the agreement invest the language of the contract with a special meaning." Kelly v. Med. Life Ins. Co. , 31 Ohio St.3d 130, 132, 509 N.E.2d 411 (1987), citing Blosser v. Enderlin , 113 Ohio St. 121, 148 N.E. 393 (1925). However, in this case, the cover letter contains no language suggesting that the parties intended to authorize MAG to advance fees that Santanello had refused to pay:

Regarding the construction management portion, we would work directly for you bidding out to the subcontractors and suppliers on your behalf, and managing the entire construction process. The advantage to this is we can typically save you approximately 10% to 12% over the cost of a general contractor. Added benefits are we have more involvement in the details from start to finish, you have access to all of the subcontractor bids and we can make sure the construction is performed properly.

{¶ 26} In addition to the agreement itself not providing a basis for authorizing such advances, Manley himself testified that when making the advances, he was not operating under the agreement:

But I, in turn, in order to keep the project moving and to finish the project, you know, even though I had no obligation to do so, I paid a lot of these contractors and suppliers because I felt that it was unfair to them to hold money back like this on people who had done such a good job and really didn't have much more to finish. That they needed to get paid because I was really afraid we were going to lose these contractors and the project was just going to come to a grinding halt.

(Aug. 22, 2016 Tr. Vol. I at 150.)

{¶ 27} Manley also testified that Santanello "didn't want to pay certain things because certain contractors weren't done. And I thought it was withholding too much money." (Tr. Vol. I at 151.) Manley felt that "ultimately, [Santanello's withholding] went on so long and there were a couple of liens that were filed against the property." (Tr. Vol. I at 151-52.) Manley testified that because there were "contractors that didn't want to cooperate because they weren't getting paid," he "made the decision on [his] own to start to pay some of these people just to get them back to finish the work." (Tr. Vol. I at 152.)

{¶ 28} Manley's testimony demonstrates that he wanted the project to be completed and was concerned about his working relationship with the subcontractors. However, by creating an agreement that allowed a homeowner with no experience in construction to function as his own general contractor, he ran the risk that Santanello might decide to withhold payment to subcontractors on the project. In return, MAG was able to offer a contract with a reduced rate as a selling point. "It is not the responsibility or function of this court to rewrite the parties' contract in order to provide for a more equitable result." Hope Academy Broadway Campus at ¶ 37. "A contract 'does not become ambiguous by reason of the fact that in its operation it will work a hardship upon one of the parties thereto.' " Foster Wheeler Enviresponse v. Franklin Cty. Convention Facilities Auth. , 78 Ohio St.3d 353, 362, 678 N.E.2d 519 (1997), quoting Ohio Crane Co. v. Hicks , 110 Ohio St. 168, 172, 143 N.E. 388 (1924). "Unless there is 'fraud or other unlawfulness involved, courts are powerless to save a competent person from the effects of his own voluntary agreement.' " Hope Academy Broadway Campus at ¶ 37, quoting Dugan & Meyers Constr. Co. v. Ohio Dept. of Adm. Servs. , 113 Ohio St.3d 226, 2007-Ohio-1687, 864 N.E.2d 68, ¶ 29. Although Manley appears to have operated with the best of intentions, the agreement between him and Santanello did not give him the authority to unilaterally decide that Santanello had withheld "too much money" from subcontractors, pay them, and then sue Santanello for those advances. As the existence of the liens shows, a remedy existed for the dispute between Santanello and the subcontractors.

{¶ 29} For the foregoing reasons, we conclude that the trial court erred when it construed the agreement to allow Manley or MAG the authority to advance monies to the subcontractors and subsequently recover those advances from Santanello. Accordingly, Santanello's first assignment of error is sustained, and the amount of damages awarded to MAG is reduced to $27,179 for the fees for "architect design" and "contract management," plus prejudgment interest of 18 percent, as the contract contemplated.

{¶ 30} We now turn to MAG's first cross-assignment of error, which asserts that the trial court erred by allowing a set-off in the amount of damages for the amount of a new barn roof, based on its determination that MAG breached its "construction management" responsibilities.

{¶ 31} As an initial matter, we agree with the trial court's interpretation of the scope of those responsibilities. The trial court emphasized MAG's assurance in the cover letter accompanying the agreement that it would "make sure the construction is performed properly." (Nov. 18, 2016 Decision at 3.) The trial court did not construe this statement as a warranty or "guarantee" covering the work of the subcontractors. (Decision at 4.) MAG was not "an insurer of the work of trade contracts such as the contractor who erected the barn and leaking roof." Id. Furthermore, "each contractor hired by Dr. Santanello remained responsible for their own performance, and any deficiencies in the work, ultimate responsibility for enforcing that work rested on the owner, not Manley Architecture Group." Id.

{¶ 32} We also agree with the trial court's observation that when the parties agreed that MAG would perform "the overarching role of 'construction manager,' the parties plainly did contemplate that Manley would actively monitor ongoing work." (Decision at 4.) Thus, it was MAG's responsibility to "alert Dr. Santanello in a timely manner" when problems arose during construction, "so that the doctor could pursue appropriate remedial action with the contractor in question." Id.

{¶ 33} Nevertheless, the trial court's reasonable definition of MAG's construction management responsibilities cannot be reconciled with its ultimate determination that MAG breached them. The trial court ruled that MAG breached "its construction management responsibilities in monitoring installation of the barn roof" and did not "monitor [the] barn roof installation." (Decision at 8.) Santanello testified that he knew about the leaking roof "soon after it was essentially completed," at which time Manley "worked hard at trying to figure out what the problem was." (Aug. 22, 2016 Tr. Vol. III at 36-37.) At that point, Williams was still working on building the barn, and Manley "tried an attempt at once" to have Williams fix the roof. (Tr. Vol. III at 37.) Santanello testified that Manley then hired a different roofing company "to look at it" and make non-structural repairs to the roof. (Tr. Vol. III at 37-38.) Santanello's own testimony demonstrates that Manley performed the "construction management" responsibilities as the parties had intended under the agreement.

{¶ 34} By ruling that MAG was liable to Santanello for the entire cost of replacing the roof, the trial court essentially made MAG a guarantor of the roof installer, in spite of the fact that its definition of construction management expressly stated that MAG was not a guarantor for the work of the subcontractors. This ruling imposed a more stringent set of responsibilities on MAG than the trial court's own definition required. Accordingly, we sustain MAG's first cross-assignment of error, reverse the trial court's ruling in favor of Santanello on the counterclaim for breach of contract arising from the barn roof, and vacate the $160,000 in damages awarded to Santanello.

IV. CONCLUSION

{¶ 35} Under our de novo review of the parties' agreement, the scope of MAG's "construction management" role did not authorize MAG to recover for advances to subcontractors, nor did it make MAG the guarantor of each subcontractor's work. Accordingly, the trial court's judgment is affirmed in part and reversed in part. The judgment is affirmed as to the $27,179 in unpaid architectural fees and prejudgment interest that Santanello has not appealed, but is reversed regarding the $55,577.68 advanced by MAG to subcontractors and the $160,000 for the replacement of the barn roof. Thus, we sustain Santanello's second assignment of error and MAG's first cross-assignment of error, and render all other assignments of error as moot.

Judgment affirmed in part and reversed in part.

BROWN, P.J. and LUPER SCHUSTER, J., concur.

      The unpaid amount of $27,179 earned architectural fees for the racquetball court and the gazebo are not in dispute on appeal.