author: Wise, E., J.

text:
    Wanda L. MCFARREN, Individually and as Administratrix for the Estate of Angeline B. Rinker, Deceased, Plaintiff-Appellant v. EMERITUS AT CANTON, et al, Defendants-Appellees
    No. 2017CA00130
    Court of Appeals of Ohio, Fifth District, Stark County.
    DATE OF JUDGMENT: April 20, 2018
    LEE E. PLAKAS, MEGAN J. FRANTZ OLDHAM, COLLIN S. WISE, 220 Market Avenue South 8th Floor, Canton, OH 44702, For Plaintiff-Appellant
    KEITH HANSBROUGH, 127 Public Square, Suite 3510, Cleveland, OH 44114, For Defendants-Appellees
    JUDGES: Hon. John W. Wise, P.J., Hon. Craig R. Baldwin, J., Hon. Earle E. Wise, J.
   Wise, E., J.

{¶ 1} Plaintiff-Appellant Wanda L. McFarren, individually and as Administratrix for the Estate of Angeline B. Rinker, deceased, appeals the June 30, 2017 judgment entry of the Stark County Court of Common Pleas granting summary judgment to Defendants-Appellees Emeritus at Canton, et al.

FACTS AND PROCEDURAL HISTORY

{¶ 2} This matter returns to us following our reversal and remand pertaining to McFarren's contract claims in McFarren v. Emeritus at Canton et. al , 5th Dist. Stark No. 2015CA00052, 59 N.E.3d 652, 2016-Ohio-484, herein " McFarren I ." Facts relevant to this appeal are as follow:

{¶ 3} In July, 2010, 91-year old Angeline B. Rinker and her family sought a temporary care provider for Mrs. Rinker while Mrs. Rinker's usual caretaker was unavailable. It was decided that Mrs. Rinker should stay at The Landing of Canton for a short-term period from July 8, 2010 to July 15, 2010.

{¶ 4} Defendant-Appellee The Landing of Canton is a licensed residential care facility which provides assisted living, memory care, and respite/short-term stay care. Defendant-Appellee Emeritus of Canton operates The Landing of Canton. For ease of discussion, The Landing of Canton and Emeritus of Canton will be referred to as "Emeritus."

{¶ 5} On July 8, 2010, Mrs. Rinker and a family member signed a Respite/Short Term Stay Addendum to Resident Agreement with Emeritus. The Respite/Short Term Stay Addendum stated in Paragraph 4, "[p]rovided that we agree and have space available at the Community, you may extend this Respite Period by executing a new Respite Addendum or you may convert to a regular residency by executing a standard Resident Agreement."

{¶ 6} The same day, at the request of Emeritus, Mrs. Rinker's personal physician, Dr. Thomas, completed a health assessment of Mrs. Rinker. The health assessment form asked for Mrs. Rinker's health history and physical. As to "Ambulatory Status," Dr. Thomas wrote in "re-evaluate." Dr. Thomas checked the box for "Assist with transfer: One person." The health assessment form also asked for the "Type of Care or Services Resident Requires." Dr. Thomas wrote in "Nursing Home" for "Type." He also wrote, "Duration: Indefinite."

{¶ 7} Mrs. Rinker's original respite stay agreement terminated on July 15, 2010, but Mrs. Rinker's family determined they needed more time. On July 14, 2010, Plaintiff-Appellant Wanda L. McFarren signed a Resident Agreement with Emeritus to convert Mrs. Rinker's short-term stay to a regular residency. Mrs. Rinker's term of residency was month-to-month.

{¶ 8} On July 15, 2010 at approximately 6:40 p.m., a Resident Assistant found Mrs. Rinker in her room, lying on the floor beside her bed. The Resident Assistant notified Shawn Meek, the LPN on duty. A portable x-ray company was called and it was determined at 11:45 p.m. that Mrs. Rinker fractured her left hip. Mrs. Rinker was transported to Mercy Medical Center.

{¶ 9} Mrs. Rinker stayed at Mercy Medical Center until July 21, 2010. She was then transferred to the Canton Regency. That evening, Mrs. Rinker passed away.

{¶ 10} The death certificate certified by the Stark County Coroner stated the immediate cause of death was complications of a left hip fracture. The coroner listed the condition leading to the immediate cause of death as, "Fall."

{¶ 11} On July 13, 2012, Plaintiff-Appellant Wanda L. McFarren, Individually and as Administratrix for the Estate of Angeline B. Rinker, Deceased, filed a complaint in the Stark County Court of Common Pleas. In the complaint, she named Emeritus of Canton, Emeritus Corporation, The Landing of Canton, and others who are no longer parties to this matter, as defendants. McFarren filed an amended complaint on March 10, 2014 asserting six causes of action.

{¶ 12} In Count One, McFarren set forth a claim for negligence. McFarren alleged the defendants were negligent in admitting and retaining Mrs. Rinker as a resident based upon the argument that Mrs. Rinker required a higher level of care than the defendants could provide.

{¶ 13} In Count Two, McFarren claimed the defendants violated the Ohio Patients' Bill of Rights under R.C. 3721.13(A)(30).

{¶ 14} In Counts Three and Four, McFarren argued the defendants breached the terms of the Resident Agreement and the Care Agreement.

{¶ 15} In Count Five, McFarren claimed the defendants caused the wrongful death of Mrs. Rinker by their failure to meet the standard of care in failing to properly supervise, attend, and assist Mrs. Rinker and failing to implement fall risk interventions.

{¶ 16} In Count Six, McFarren set forth a claim for punitive damages.

{¶ 17} On October 27, 2014, Appellees Emeritus filed a motion for summary judgment. On the same date, McFarren filed a motion for summary judgment as to cause of death.

{¶ 18} On March 3, 2015, the trial court granted the motion for summary judgment of Emeritus. The court further determined the claims raised by McFarren were medical claims, and therefore time-barred by the one-year statute of limitations under R.C. 2305.113. As to McFarren's wrongful death claim, the trial court found that McFarren failed to establish through expert testimony that there were genuine issues of material fact demonstrating Emeritus deviated from the standard of care and that deviation proximately caused Mrs. Rinker's fall on July 15, 2010. The court thus further found an issue challenging the cause of Mrs. Rinker's death as set forth on the certificate certified by the Stark County Coroner was moot. Finally, the trial court also denied McFarren's claim for punitive damages.

{¶ 19} McFarren appealed to this court raising five assignments of error, specifically: 1) that a genuine issue of material fact existed as to causation because McFarren had introduced evidence to demonstrate Emeritus breached the standard of care; 2) McFarren's claims of negligence, violation of Ohio's Patient Bill of Rights, and breach of contract for personal injury were not medical claims when the negligence actors did not provide any professional skill; 3) The trial court erred in grating summary judgment on punitive damages claim when the evidence demonstrated Emeritus had knowledge Mrs. Rinker required a higher level of care than Emeritus could provide, and despite that knowledge admitted and retained Mrs. Rinker; 4) The trial court erred in finding an affidavit executed by Mrs. Rinker's grandson was hearsay because it rebutted testimony of Emeritus employees and Emeritus's expert's testimony; and 5)

McFarren's motion for summary judgment on causation should have been granted as there is no genuine dispute that Mrs. Rinker's fall caused her death.

{¶ 20} We affirmed in part, and reversed and remanded in part. Specifically, we found McFarren's breach of contract claims were not medical claims, and therefore were not brought outside the statute of limitations as previously found by the trial court. We thus remanded the breach of contract claims, counts three and four of McFarren's first amended complaint, for consideration on the merits. We further remanded the matter of cause of death for the trial court's decision. We found McFarren's remaining arguments without merit.

{¶ 21} McFarren attempted an appeal to the Supreme Court of Ohio. On October 26, 2016, the Court declined jurisdiction. State v. McFarren , 147 Ohio St.3d 1413, 2016-Ohio-7455, 62 N.E.3d 185.

{¶ 22} On remand, Emeritus filed a motion for summary judgment as to the remaining contract claims and McFarren filed a brief in opposition. After considering McFarren's breach of contract complaint on the merits, the trial court found McFarren had failed to produce any evidence to show Emeritus had violated any terms of the Resident Agreement or the Care Agreement. On the issue of the cause of Mrs. Rinker's death, the trial court found no evidence had been presented to rebut the presumption contained in the Coroner's report.

{¶ 23} McFarren subsequently filed this appeal, raising three assignments of error:

I

{¶ 24} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON MCFARREN'S BREACH OF CONTRACT CLAIMS WHERE THIS COURT PREVIOUSLY REMANDED MCFARREN'S BREACH OF CONTRACT CLAIMS TO THE TRIAL COURT FOR FURTHER PROCEEDINGS DESPITE THIS COURT'S RULINGS WITH RESPECT TO MCFARREN'S NEGLIGENCE AND WRONGFUL DEATH CLAIMS PREMISED ON THE SAME UNDERLYING FACTS."

II

{¶ 25} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON MCFARREN'S BREACH OF CONTRACT CLAIMS WHERE THE TRIAL COURT APPLIED THE STANDARD FOR BREACH UNDER COMMON LAW NEGLIGENCE RATHER THAN THE STANDARDS SET FORTH IN THE CONTRACT, FAILED TO CONSIDER RELEVANT LANGUAGE AND PROVISIONS IN THE CONTRACT, EXCUSED EMERITUS' BREACH DUE TO ITS ALLEGED ALTRUISTIC MOTIVE, AND BLAMED MRS. RINKER'S FAMILY FOR EXECUTING THE AGREEMENT TO READMIT HER."

III

{¶ 26} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT ON MCFARREN'S BREACH OF CONTRACT CLAIMS WHEN GENUINE ISSUES OF MATERIAL FACT EXISTED REGARDING WHETHER EMERITUS BREACHED THE CONTRACT, PROXIMATELY CAUSING DAMAGES.

I

{¶ 27} In her first assignment of error, McFarren argues the trial court violated law of the case doctrine when on remand and on the same record, it again granted summary judgment to Emeritus.

According to McFarren, we remanded the breach of contract claims for trial. McFarren's argument is based on a misreading of McFarren I.

{¶ 28} In McFarren I, the trial court had not addressed McFarren's breach of contract claims at all because it found them to be medical claims which were raised outside the statute of limitations. We reversed, finding the claims were not medical claims and remanded for further proceedings based on that opinion. McFarren v. Canton , 5th Dist. Stark No. 2015CA00052, 59 N.E.3d 652, 2016-Ohio-484 ¶ 51. The trial court proceeded properly on remand by considering the breach of contract claims on the merits.

{¶ 29} The first assignment of error is overruled.

II, III

{¶ 30} In her second and third assignments of error, McFarren argues the trial court erred in granting summary judgment to Emeritus on her breach of contract claims. Specifically McFarren argues that on remand, the trial court applied the wrong standard in evaluating her breach of contract claims, failed to consider relevant language and provisions in the contract, excused Emeritus' breach for alleged altruistic motive, and blamed Mrs. Rinker's family for executing the agreement to readmit her. Additionally, McFarren argues the trial court improperly applied our findings in McFarren I, with regard to the standard of care for negligence, to McFarren's breach of contract claims. We disagree.

{¶ 31} Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins , 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996) :

Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.

{¶ 32} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc. , 30 Ohio St.3d 35, 506 N.E.2d 212 (1987).

{¶ 33} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No. 15CA56, 2015-Ohio-4444, 2015 WL 6460079, ¶ 13 :

It is well established the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265( 1986). The standard for granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293, 662 N.E.2d 264 : "* * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." The record on summary judgment must be viewed in the light most favorable to the opposing party. Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150, 309 N.E.2d 924.

{¶ 34} In order to state a valid claim for breach of contract, it was incumbent upon McFarren to establish: (1) the existence of a contract; (2) performance by McFarren; (3) breach by Emeritus; and (4) damage as a result. Blake Homes, Ltd. v. First Energy Corp. , 173 Ohio App.3d 230, 2007-Ohio-4606, 877 N.E.2d 1041 (6th Dist).

McFarren's Contract Claims

{¶ 35} In Count Three of her First Amended Complaint, McFarren alleged Emeritus breached paragraph nine of the Resident Agreement titled "Transfer to More Appropriate Care" and "other provisions." McFarren alleged Emeritus breached the contract by admitting and retaining Mrs. Rinker as a resident, and failing to transfer Mrs. Rinker "despite the fact that Dr. Joseph P. Thomas ordered that 1) Mrs. Rinker required a nursing home and 2) her needs could not be met in an assisted living community," and Mrs. Rinker suffered injury as a direct and proximate result. As the case proceeded below, McFarren's complaint evolved to include an accusation that Emeritus failed to advise Mrs. Rinker's family of Dr. Thomas' assessment.

{¶ 36} In Count Four of her First Amended Complaint, McFarren alleged Emeritus breached the Care Agreement by failing to provide the care and services to Mrs. Rinker that they agreed to provide, and Mrs. Rinker suffered injury as a direct and proximate result.

Contract Provisions

{¶ 37} The introduction of the Resident Agreement states the purpose of the Agreement "* * * is to provide a statement of the services that will be furnished to you, and other legal obligations that we will assume. This Agreement also sets forth your legal obligations, both financial and non-financial." The introduction of the Agreement further states:

Please note that as a residential care facility, we encourage our residents to exercise independence and to participate in physical activities to the extent of their capabilities. Because of this, there are risks inherent to living in our Community that are similar to the risks associated with independent living, since our Community does not provide one-on-one, 24 hour nursing care. This includes the risk that falls and other personal injuries may occur from time to time.

{¶ 38} The Resident Agreement states the limits of its services:

Transfer for more Appropriate Care

The Community is licensed as a residential care facility, and is not designed to provide higher levels of care, such as 24 hour skilled nursing or care for mental or emotional disorders. You may remain in your Apartment as long as doing so is conducive to your safety and well-being, the safety and wellbeing of the other residents at the Community, and applicable legal requirements. If we determine, in consultation with you, your family and/or your physician, that you are unable to remain in your Apartment consistent with these requirements, you will be asked to move from the Community and this Agreement will terminate. If you do not move out under these circumstances, and we determine that it is necessary to provide you with one-on-one care in order to protect your health or safety or the health or safety of others, we will provide such care and you will be charged for it in accordance with Appendix B.

{¶ 39} The Resident Agreement also outlines the level of Personal Care Services (the "Care Agreement") the resident will be provided, depending on the resident's needs. The Agreement states that prior to admission to the Community, the staff performed a comprehensive Resident Evaluation of the resident's needs. The Evaluation is titled, "Emeritus Resident Baseline & Data Set." Based on the Emeritus Resident Baseline & Data Set, Emeritus ranks the resident's needs by different levels of care. The Resident Evaluation of Mrs. Rinker was completed by Emeritus on July 9, 2010. Relevant to this appeal, the Emeritus Resident Baseline & Data Set describes Mrs. Rinker's level of care:

* * *
1c. Mental Behavioral Status
* * *
Resident has periods of confusion/forgetfulness. Landing of Canton will be responsible.
Resident requires safety check every shift. This applies, but not limited to a resident at risk for wandering. Landing of Canton will be responsible.
Requires daily safety checks (not related to fall history) Landing of Canton will be responsible.
2a. Mobility/Ambulation/Modes of Locomotion
Requires assistance for mobility to and from meals, activities, beauty shop, and/or common areas. Landing of Canton will be responsible.
* * *
2a. Gait/Balance
Resident has been identified to have an unsteady gait, monitor for safety, Ambulation and Mobility Evaluation completed. Landing of Canton will be responsible.
* * *

Acknowledgement and Acceptance Agreement

This document reflects the agreement of the parties regarding the needs of the Resident, regarding who will be responsible for providing the services to fill those needs, and regarding payment for services to be provided by Facility. The parties enter into this agreement for services to be provided to Resident by Facility or to be provided by Resident for himself or herself. * * * Resident understands and acknowledges that independently providing for services can entail risks, including, without limitation, serious health risks. Resident agrees to release and hold Facility harmless against any claims, demands, damages, liability or obligation of whatsoever nature arising out of or relating in any way to injuries, damages or harm suffered by reason of Resident's decision to provide for the identified needs either by Resident or indirectly by arrangements with anyone other than Facility. THIS IS A RELEASE! READ AND UNDERSTAND BEFORE SIGNING.
* * *

Decision to Admit and Retain Mrs. Rinker

{¶ 40} McFarren's argument hinges on the health assessment of Dr. Thomas which was completed on July 8, 2010, the day Mrs. Rinker was admitted to Emeritus. McFarren interprets the two-word recommendation of "nursing home" to mean that Emeritus was an inappropriate placement for Mrs. Rinker, and argues Emeritus' decision to admit, and then readmit Mrs. Rinker against Dr. Thomas's recommendation for a higher level of care was a breach of the Resident Agreement and the direct and proximate cause of her fall.

{¶ 41} In McFarren I at ¶ 59-61 we addressed this argument as it pertained to the duty of care for McFarren's negligence claim and found the following:

McFarren argues that Emeritus breached the standard of care when it admitted and retained Mrs. Rinker against the direction of Mrs. Rinker's personal physician, Dr. Thomas. On July 8, 2010, Mrs. Rinker's personal physician, Dr. Thomas, completed a health assessment of Mrs. Rinker. The health assessment was done at the request of Emeritus.
The health assessment form asked for Mrs. Rinker's health history and physical. As to "Ambulatory Status," Dr. Thomas wrote in "re-evaluate." Dr. Thomas checked the box for "Assist with transfer: One person." The health assessment form also asked for the "Type of Care or Services Resident Requires." Dr. Thomas wrote in "Nursing Home" for "Type." He also wrote, "Duration: Indefinite."
McFarren argues Dr. Thomas stated that Mrs. Rinker should be placed in a nursing home for the type of care or services the resident required. Emeritus knew this, but admitted and retained Mrs. Rinker. The evidence in this case is that it was the decision of Mrs. Rinker and her family to reside at Emeritus. There is no Civ.R. 56 evidence that Mrs. Rinker or her family consulted with Dr. Thomas before her admission or after her admission. Further, McFarren did not provide the deposition or affidavit of Dr. Thomas to discern what he meant by "nursing home." The term "nursing home" has a statutory definition, but it can be generally used to describe different levels of care. Emeritus is a residential facility that provides assisted living. An assisted living facility is not the same as a skilled nursing facility. A memory care unit is not the same as an assisted living facility or a skilled nursing facility. McFarren heavily relies upon the "nursing home" statement by Dr. Thomas on the health assessment form, but without a deposition or affidavit from Dr. Thomas as to his statement as to the level of care he felt Mrs. Rinker needed, [McFarren's] expert's interpretation of Dr. Thomas's statement is pure speculation.

{¶ 42} In rejecting McFarren's negligence argument, we found reasonable minds could conclude there was no breach of the standard of care to admit and retain Mrs. Rinker at Emeritus based on the assessment of Dr. Thomas. McFarren I ¶ 62.

{¶ 43} Likewise here, on the same record, we cannot say, absent an affidavit or deposition from Dr. Thomas, that this two-word assessment was a prescription for a higher level of care. Contrary to McFarren's argument, Dr. Thomas' assessment did not unequivocally determine Mrs. Rinker's needs could not be met at Emeritus as there is no evidence on this record as to what the doctor meant by term "nursing home."

{¶ 44} Further, there is evidence on the record that Emeritus was capable of meeting Mrs. Rinker's needs and that a skilled nursing facility, or "nursing home" was not necessary to meet Mrs. Rinker's needs. Vomacka deposition December 17, 2012, 150, Fifield deposition, January 22, 2013 38-39. But even if Mrs. Rinker had required skilled nursing, as the trial court found, in Ohio, a residential care facility may admit or retain individuals who require skilled nursing care for up to 120 days. O.A.C 3701-17-59.1 states:

Except as provided in division (D) of this section, a residential care facility may admit or retain individuals who require skilled nursing care beyond the supervision of special diets, application of dressings, or administration of medication, only if the care will be provided on a part-time, intermittent basis for not more than a total of one hundred twenty days in any twelve-month period. In accordance with Chapter 119. of the Revised Code, the director of health shall adopt rules specifying what constitutes the need for skilled nursing care on a part-time, intermittent basis. The director shall adopt rules that are consistent with rules pertaining to home health care adopted by the medicaid director for the medicaid program. Skilled nursing care provided pursuant to this division may be provided by a home health agency certified for participation in the medicare program, a hospice care program licensed under Chapter 3712. of the Revised Code, or a member of the staff of a residential care facility who is qualified to perform skilled nursing care.

{¶ 45} Mrs. Rinker was a resident of Emeritus for less than 120 days. She resided there first as a respite care case when her usual caretaker was unavailable, and then was readmitted when her family needed more time. McFarren I, ¶ 61, Vomacka deposition, December 17, 2012, 67-68, 120, 152-153, 171-172, Fifield deposition, January 22, 2013, 46-47, Willis deposition December 21, 2012, 53. Mrs. Rinker's placement and retention thus met "applicable legal requirements."

{¶ 46} Further, the Transfer to More Appropriate Care provision does not indicate that a transfer hinges upon a physician's recommendation, nor that Emeritus is required to share a physician's recommendation with the family. Rather, it indicates this is a determination made after "consultation with you, your family and/or your physician." [Emphasis added.] Nothing in this section, or any other section of the contract indicates Emeritus was obligated to transfer Mrs. Rinker based on Dr. Thomas's assessment alone. Even if Emeritus "should" have shared this information with Mrs. Rinker's family as McFarren argues, it was not contractually bound to do so. The evidence in the record is that placement is ultimately the decision of the family. Rinker's family did not want to place her in a "nursing home," and it was the decision of Mrs. Rinker's family that she reside at Emeritus. Vomacka deposition, December 17, 2012, 120.

{¶ 47} As for McFarren's allegation that Emeritus breached the Care Agreement, as noted by the trial court, McFarren produced no evidence to show Emeritus failed to provide any services it promised to deliver.

{¶ 48} Next, although McFarren argues here that the trial court improperly excused Emeritus' conduct based on altruistic motive, i.e., "to help Mrs. Rinker's family," it appears McFarren acknowledged that Mrs. Rinker's readmission was indeed to help the family as they needed more time. Plaintiff's Opposition Brief, November 13, 2014, at 1, incorporated to the Opposition Brief filed March 13, 2017.

{¶ 49} Although McFarren strenuously argues that other sections of the Resident Agreement indicate Emeritus had a contractual obligation to regularly and accurately evaluate Mrs. Rinker to determine if her needs could be met at the facility, and did not do so, the record indicates otherwise. The resident agreement gives no indication whatsoever as to what intervals reevaluations should occur. Depositions however, indicate that evaluations take place upon admission, and then once a month thereafter. Vomacka deposition, December 17, 2012 at 134, Fifield deposition, January 22, 2013 at 105. Mrs. Rinker was a resident at Emeritus for only 7 days and was evaluated upon admission. Meek deposition, November 29, 2012, 31-50.

{¶ 50} Even if McFarren had demonstrated a breach of either the Resident Agreement or the Care agreement, she still has failed to establish a nexus between any breach and Mrs. Rinker's fall. As we found in McFarren I at ¶ 82 :

* * *There is no evidence in the record to establish a genuine issue of material fact as to how Mrs. Rinker fell. The Civ.R. 56 evidence shows that no one on staff at Emeritus recalls Mrs. Rinker in her room before the fall. There is no evidence whether Mrs. Rinker was in her bed or in her wheelchair before she was discovered on the floor of her room at 6:40 p.m. There is no Civ.R. 56 evidence whether Mrs. Rinker wore an emergency pendant to alert someone if she fell or even if she was wearing the pendant, or that Mrs. Rinker knew to use the device. McFarren's expert opines different fall preventions that Emeritus should have had in place to prevent Mrs. Rinker's fall, but in this case, there is no knowledge as to how Mrs. Rinker fell. As the trial court determined, it is speculation on part of McFarren's expert to state that if Emeritus had more precautions been in place, Mrs. Rinker would not have fallen.

{¶ 51} The evidence here remains the same. We therefore find McFarren has not provided Civ.R. 56 evidence to create a genuine issue of material fact to show Emeritus breached any portion of the Resident Agreement or the Care Agreement, nor a nexus between any breach and injury.

{¶ 52} Finally, McFarren also argues the trial court failed to consider the Resident Agreement as a whole, analyzing only those provisions set forth in McFarren's First Amended Complaint. Although the trial court did not specifically discuss the additional contract provisions raised in McFarren's response to Emeritus' Motion for Summary Judgement, it did find no breach as set forth in counts three and four of McFarren's First Amended Complaint which pled breach of specific "and other provisions" of the contract. We cannot say, therefore that the trial court failed to consider the entire contract.

{¶ 53} The second and third assignments of error are overruled.

{¶ 54} The judgment of the Stark County Court of Common Pleas is affirmed.

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

      Repealed March 1, 2018. The language of O.A.C 3701-17-59.1 in mirrored, however in R.C. 3721.011(C) effective September 29, 2013.


source: Caselaw Access Project

author: TUCKER, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Douglas L. LAWSON, Defendant-Appellant
    No. 2017-CA-28
    Court of Appeals of Ohio, Second District, Champaign County.
    Rendered on April 20, 2018
    JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign County Prosecutor's Office, 200 North Main Street, Urbana, Ohio 43078, Attorney for Plaintiff-Appellee
    BRIAN BRENNAMAN, Atty. Reg. No. 0088988, 1616 Turner Road, Xenia, Ohio 45385, Attorney for Defendant-Appellant
   TUCKER, J.

{¶ 1} Defendant-appellant, Douglas L. Lawson, appeals from his convictions for one count of aggravated possession of methamphetamine, a fifth degree felony under R.C. 2925.11(A) and (C)(1)(a) ; and one count of petty theft, a first degree misdemeanor under R.C. 2913.02(A)(1) and (B)(2). Lawson, who pleaded guilty to the two offenses, argues that the trial court erred by disregarding the record when it sentenced him to concurrent terms in prison, rather than sentencing him to community control. In the alternative, Lawson argues that the court failed to comply with the requirements of R.C. 2929.13(B)(1)(c), and that the court miscalculated the amount of jail-time credit to which he was entitled. We find that the trial court did not err, and therefore, we affirm.

I. Facts and Procedural History

{¶ 2} On June 13, 2017, a Champaign County grand jury issued a four-count indictment against Lawson, charging him with: Count 1, aggravated possession of methamphetamine in violation of R.C. 2925.11(A) ; Count 2, forgery in violation of R.C. 2913.31(A)(2) ; Count 3, forgery in violation of R.C. 2913.31(A)(3) ; and Count 4, petty theft in violation of R.C. 2913.02(A)(1). Lawson initially pleaded not guilty but subsequently entered into a plea agreement with the State, pursuant to which he pleaded guilty to Counts 1 and 4, and agreed to pay restitution. Tr. of Plea Hr'g 3:15-3:22 and 4:20-4:23, July 17, 2017. For its part, the State dismissed Counts 2 and 3, and agreed to recommend that the court sentence Lawson to community control. See id. at 3:23-4:19.

{¶ 3} At Lawson's sentencing hearing, the State formally recommended that he be sentenced to community control, suggesting as well that the court make the sentence conditional on his receipt of mental health and substance abuse counseling. Tr. of Sentencing Hr'g 3:14-4:9, July 27, 2017. The court, however, did not act on the State's recommendation because of Lawson's drug abuse, record of previous convictions, and a then-pending criminal matter in Kentucky. See id. at 5:2-6:7. Finding that "community control is just not the solution for somebody with [his] kind of drug problem," and that "a community control sanction or combination of community control sanctions [would] not protect the public from [the possibility that he would commit] future crime[s]," the court sentenced Lawson to serve concurrent terms of 12 months in the London Correctional Institution and six months in the Tri-County Regional Jail. See id. at 5:18-6:7 and 7:20-8:19.

{¶ 4} Acting on his own behalf, Lawson filed a criminal docket statement on September 22, 2017, indicating that he sought to appeal his convictions. On October 6, 2017, this court issued an order directing Lawson to show cause why his appeal should not be dismissed for lack of jurisdiction or for his failure to comply with App.R. 3. Lawson filed a response on October 16, 2017, which we construed as a motion for leave under App.R. 5(A). In our decision of November 14, 2017, we sustained the motion for leave, and on November 29, 2017, we appointed counsel to represent Lawson.

II. Analysis

{¶ 5} For his first assignment of error, Lawson contends that:

THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO MAXIMUM SENTENCES AS THE RECORD CLEARLY AND CONVINCINGLY DOES NOT SUPPORT THE TRIAL COURT'S FINDINGS.

{¶ 6} Lawson argues that the trial court disregarded the record by fixating on his prior convictions and by discounting his expression of remorse, his cooperativeness and his acceptance of responsibility. See Appellant's Br. 5. Essentially, Lawson posits that the purported overemphasis on his prior convictions is itself clear and convincing evidence that the record does not support his sentences. See id. at 5-6. The State observes in response that despite Lawson's candor "in describing his life and history," the record before the court showed that Lawson "had a high [Ohio Risk Assessment System] score[ ] [and] a history of criminal convictions" for which he had served "multiple prison terms"; that Lawson did "not respond[ ] favorably to [criminal] sanctions previously imposed"; and that Lawson had "a demonstrated pattern of drug [ab]use." Appellee's Br. 5.

{¶ 7} A "trial court has full discretion to impose any sentence within the authorized statutory range, and [it] is not required to make any findings or give its reasons for imposing maximum or more than minimum sentences." State v. King , 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). Even so, the "court must comply with all applicable rules and statutes, including R.C. 2929.11 and R.C. 2929.12." Id. , citing State v. Mathis , 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 37.

{¶ 8} R.C. 2929.11(A) mandates that a court sentencing an offender for a felony "shall be guided" by the "overriding purposes" of "protect[ing] the public from future crime by the offender and others" and "punish[ing] the offender," while "using the minimum sanctions that [it] determines [likely to] accomplish [these] purposes without imposing an unnecessary burden on state or local government resources." Accordingly, the "court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution." Id. R.C. 2929.11(B) adds that a felony sentence "shall be reasonably calculated to achieve the two overriding purposes of felony sentencing * * * commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon [any] victim[s], and consistent with sentences imposed for similar crimes committed by similar offenders."

{¶ 9} Pursuant to R.C. 2929.12(A), in "exercising [its] discretion" to determine "the most effective way to comply with the purposes and principles of sentencing set forth in [R.C.] 2929.11," a court must consider, among other things, a list of nine factors "indicating that [an] offender's conduct [was] more serious than conduct normally constituting" the offense for which the offender was convicted; a list of four factors "indicating that the offender's conduct [was] less serious than conduct normally constituting the offense"; a list of five factors "indicating that the offender is likely to commit future crimes"; and a list of five factors "indicating that the offender is not likely to commit future crimes." See also R.C. 2929.12(B) - (E). The court "may [also] consider any other factors that are relevant to achieving [the] purposes and principles of [felony] sentencing." R.C. 2929.12(A).

{¶ 10} With respect to an offender convicted of "a misdemeanor or minor misdemeanor," a court likewise "shall be guided by the overriding purposes of * * * protect[ing] the public from future crime by the offender and others" and "punish[ing] the offender." R.C. 2929.21(A). This requires that the court "consider the impact of the offense upon the victim," along with "the need for changing the offender's behavior, rehabilitating the offender, and making restitution." Id. Additionally, a misdemeanor sentence "shall be reasonably calculated to achieve the two overriding purposes of misdemeanor sentencing," while being "commensurate with and not demeaning to the seriousness of the offender's conduct and its impact upon the victim, and consistent with sentences imposed for similar offenses committed by similar offenders." R.C. 2929.21(B).

{¶ 11} Under R.C. 2953.08(G), an appellate court may modify or vacate a felony sentence only if it finds by clear and convincing evidence that the record does not support the sentence or that the sentence is otherwise contrary to law. See State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-23 ; State v. Davis , 2d Dist. Champaign No. 2016-CA-22, 2017-Ohio-6904, 2017 WL 3098586, ¶ 8, citing Marcum at ¶ 22. Clear and convincing evidence is a "degree of proof [greater] than a mere 'preponderance of the evidence' " that "produce[s] in the mind of the trier of fact[ ] a firm belief or conviction as to the facts sought to be established"; evidence that satisfies this standard need not satisfy the higher standard of " 'beyond a reasonable doubt,' " which applies in criminal trials. Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; Marcum at ¶ 22, quoting Cross , 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus. An appellate court "review[s] a misdemeanor sentence[ ] for an abuse of discretion." State v. Fankle , 2015-Ohio-1581, 31 N.E.3d 1290, ¶ 18 (2d Dist.), citing State v. Peagler , 2d Dist. Montgomery No. 24426, 2012-Ohio-737, 2012 WL 601189, ¶ 3 ; see also State v. Horton , 2017-Ohio-8549, --- N.E.3d ----, ¶ 36 (10th Dist.).

{¶ 12} Here, the trial court sentenced Lawson to concurrent terms of 12 months in the London Correctional Institution for his violation of R.C. 2925.11(A), a fifth degree felony, and to six months in the Tri-County Regional Jail for his violation of R.C. 2913.02(A)(1), a first degree misdemeanor. Tr. of Sentencing Hr'g 7:20-8:19. Notwithstanding the State's recommendation that Lawson be sentenced to community control, the court voiced concern regarding Lawson's history of previous criminal convictions, his high Ohio Risk Assessment System score, and particularly, his "drug situation," which it viewed as potentially "the biggest part of [his] problem." Id. at 5:2-5:20 and 6:25-7:14. The court indicated that it generally did "not * * * favor [a term in] prison on F-5s," but it concluded that non-residential community control would be inadequate to address Lawson's difficulty with drug abuse. Id. at 7:1-7:14. Noting that residential treatment programs were not available to Lawson because of the criminal matter pending against him in Kentucky, the court determined that a term of imprisonment might be Lawson's "only solution" because of the "chance that [he] could get some help there." Id. at 5:18-6:7 and 6:25-7:7.

{¶ 13} We find no clear and convincing evidence that the sentences imposed by the trial court are unsupported by the record. Although a prison sentence for a fifth degree felony is disfavored under R.C. 2929.13(B)(1)(a), which the court implicitly acknowledged in its remarks, the court had the option to sentence Lawson to prison pursuant to R.C. 2929.13(B)(1)(b)(x). The trial court's imposition of prison sentences is supported by Lawson's high Ohio Risk Assessment System score; his history of prior convictions for serious offenses; the relationship of his drug abuse to his commission of criminal acts; and his apparent unwillingness to accept that his drug abuse is a problem. Tr. of Sentencing Hr'g 5:2-7:14. Both of the sentences, furthermore, fall within statutory guidelines, meaning that they are valid exercises of the trial court's discretion. State v. Graham , 2d Dist. Montgomery Nos. 26205, 2015-Ohio-896, 2015 WL 1125072, ¶ 20 ; State v. King , 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.) ; see also R.C. 2929.14(A)(5) and 2929.24(A)(1). Lawson's first assignment of error is overruled.

{¶ 14} For his second assignment of error, Lawson contends that:

THE TRIAL COURT ERRED AS A MATTER OF LAW BY SENTENCING DOUGLAS LAWSON TO A PRISON TERM.

{¶ 15} The wording aside, Lawson argues in his second assignment of error that his sentences should be vacated because the trial court failed to comply with R.C. 2929.13(B)(1)(c). See Appellant's Br. 7-8. According to the State, R.C. 2929.13(B)(1)(c) did not apply because the court "was not amenable to sentencing [Lawson] to community control" without placing him in "a treatment facility," none of which were available as the result of the pending case against him in Kentucky. Appellee's Br. 6.

{¶ 16} Under R.C. 2929.13(B)(1)(c), if a court sentencing an offender for a fourth or fifth degree felony "that is not an offense of violence * * * believes that no community control sanctions are available for its use that, if imposed on the offender, will adequately fulfill the overriding principles and purposes of sentencing," then it "shall contact the department of rehabilitation and correction and ask [for] the names * * * of one or more community control sanctions of at least one year's duration that are available." The trial court in this case did refer obliquely to the availability of treatment programs suitable for Lawson, yet it also found expressly that "putting [him] on community control [was] not going to help." Tr. of Sentencing Hr'g 6:1-6:7 and 7:8-7:14. In other words, the court did not question whether suitable community control programs were available; instead, the court determined that no community control sanctions were likely to "adequately fulfill the overriding principles and purposes of sentencing." R.C. 2929.13(B)(1)(c) ; see Tr. of Sentencing Hr'g at 6:1-7:14; R.C. 2929.13(B)(1)(c). The fact of Lawson's prior convictions, in any event, gave the court "discretion to impose a prison term" under R.C. 2929.13(B)(1)(b)(x). State v. Robinson , 2d Dist. Champaign No. 2012 CA 17, 2012-Ohio-4976, 2012 WL 5293023, ¶ 22 ; State v. Parker , 8th Dist. Cuyahoga No. 104610, 2017-Ohio-4294, 2017 WL 2590544, ¶ 6-10 ; Tr. of Sentencing Hr'g at 8:3-8:8. Lawson's second assignment of error is overruled.

{¶ 17} For his third assignment of error, Lawson contends that:

THE TRIAL COURT ERRED IN ITS CALCULATION OF JAIL-TIME CREDIT.

{¶ 18} Lawson faults the trial court for failing to credit the time he spent in jail between the date on which the court accepted his pleas, July 7, 2017, and the date on which he was transferred to the department of corrections, July 31, 2017. Appellant's Br. 9-10. During this interval, however, Lawson was incarcerated "by reason of a sentence previously imposed for a different offense," and consequently, he is not entitled to additional jail-time credit for the period running from July 7, 2017, through July 31, 2017. State v. Ways , 2d Dist. Montgomery No. 25214, 2013-Ohio-293, 2013 WL 425784, ¶ 10 ; Final Appealable Order 2, Aug. 29, 2017. Lawson's third assignment of error is overruled.

III. Conclusion

{¶ 19} We find that Lawson has not demonstrated with clear and convincing evidence that the record does not support the sentences imposed by the trial court. Further, we hold that Lawson's sentences should not be vacated pursuant to R.C. 2929.13(B)(1)(c), and that the trial court correctly determined the amount of jail-time credit to which Lawson was entitled. Lawson's assignments of error are overruled, and the trial court is affirmed.

DONOVAN, J. concurs.

{¶ 20} Former Federal Judge Marvin E. Frankel once argued that "individualized sentencing has gotten quite out of hand. * * * [I]ndividualized justice is prima facie at war with such concepts, at least as fundamental, as equality, objectivity, and consistency in the law." Marvin E. Frankel, Criminal Sentences: Law Without Order 10 (1973), cited in Pryor, Federalism and Sentencing Reform in the Post-Blakeley/Booker Era , 8 Ohio St. J. Crim. L. 515 (2011). Forty-five years later there is a concern that those core concepts-equality, objectivity, and consistency-are "at war" with algorithmic, actuarial risk assessment. See, e.g., Sidhu, Moneyball Sentencing , 56 B.C.L. Rev. 671 (2015) ; and Miller, Sentencing Equality Pathology , 54 Emory L. Rev. 271 (2005).

{¶ 21} To the extent the trial court only considered the Ohio Risk Assessment System scores, but did not depend or rely on them (as opposed to relying on Lawson's criminal history and the statutory sentencing factors), this is not the case for an exegesis on the potential problems and unintended consequences of such statistical tools. Therefore, I concur.

      The Ohio Risk Assessment System is the risk assessment tool adopted, pursuant to R.C. 5120.114, by the Department of Rehabilitation and Correction. Ohio Adm.Code 5120-13-01.

      "[A]t most, it [ORAS] may be one factor in informing a trial court's discretion * * *." State v. Jennings , 2d Dist. Clark No. 2013-CA-60, 2014-Ohio-2307, 2014 WL 2475587, ¶ 28.

      "Statistics are human beings with the tears wiped off." Paul Brodeur, Outrageous Misconduct: The Asbestos Industry on Trial (1985).


author: Wise, Earle, J.

text:
    Michael P. FOX, Plaintiff-Appellee-Cross-Appellant v. CITY OF PATASKALA, Defendant-Appellant Cross-Appellee
    No. 17-CA-75
    Court of Appeals of Ohio, Fifth District, Licking County.
    DATE OF JUDGMENT: April 20, 2018
    SAMANTHA J. BRUSH, 20 Executive Suite F, Chillicothe, OH 45601, JAMES D. PERKO, JR., 1310 Harrison Pond Drive, New Albany, OH 43054, For Plaintiff-Appellee
    JOHN C. ALBERT, 500 South Front Street, Suite 1200, Columbus, OH 43215, For Defendant-Appellant
    JUDGES: Hon. John W. Wise, P.J., Hon. William B. Hoffman, J., Hon. Earle E. Wise, Jr., J.
   Wise, Earle, J.

{¶ 1} Defendant-Appellant-Cross-Appellee, The City of Pataskala, appeals the January 25, and August 14, 2017 judgment entries of the Municipal Court of Licking County, Ohio, granting summary judgment and entering a money judgment for attorney fees, respectively, to Plaintiff-Appellee-Cross-Appellant, Michael P. Fox. Plaintiff-Appellee-Cross-Appellant appeals the August 14, 2017 judgment entry of the trial court denying his motion for attorney fees he incurred in filing the subject case.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On November 25, 2013, appellee was served with a letter from appellant's mayor, Stephen Butcher, pursuant to Section 11.01(C) of the city charter, accusing him of committing malfeasance while in office as a member of City Council. The letter listed certain causes for removal, and notified him of a special council meeting scheduled for January 14, 2014, to discuss his removal. Appellee was invited to attend and be heard and present any defenses to the charges.

{¶ 3} During the January 14th hearing, appellee, along with his counsel, were present. Also present was the new mayor, Michael Compton. Pursuant to the city charter, Mayor Compton was to preside over "meetings." However, Mayor Compton had tried to withdraw the charges against appellee and cancel the hearing back on January 6, 2014. City Council agreed the best course of action was to designate a hearing officer to preside over the proceedings and continue the matter to the next day.

{¶ 4} During the January 15th hearing, appellee, his counsel, and a hearing officer were present. City Council was informed that the parties had settled the matter and signed an Agreed Order. The parties agreed appellee would apologize for his actions related to the charges, and City Council would issue a public reprimand which was appropriate and sufficient to resolve the matter. City Council also agreed appellee would not be removed from council and the removal proceedings against him were complete.

{¶ 5} Thereafter, appellee's attorney submitted a bill for attorney fees in defending the matter to appellant pursuant to Section 11.01(G) of the city charter. A detailed bill was requested by appellant and received. The bill went unpaid and accrued interest for non-payment. Eventually, appellee received a collection notice from his attorney.

{¶ 6} On August 23, 2016, appellee filed a complaint against appellant, seeking an award for the attorney fees he incurred in defending himself against the malfeasance charges. Each party filed motions for summary judgment. Appellant argued removal proceedings never commenced so therefore it was not obligated to pay appellee's attorney fees under the city charter. Appellee argued because he was accused and not removed, appellant was obligated to pay his attorney fees under the city charter. By judgment entry filed January 10, 2017, the trial court denied appellant's motion. By judgment entry filed January 25, 2017, the trial court granted appellee's motion.

{¶ 7} On April 4, 2017, the parties stipulated as to the amount of damages ($10,000) in lieu of an evidentiary hearing. Appellant reserved its right to appeal. On same date, appellee filed a motion for the attorney fees he incurred in filing the subject case. A hearing on the motion was held on June 16, 2017.

{¶ 8} By decision and judgment entry filed August 14, 2017, the trial court awarded appellee as against appellant $10,000 plus interest and costs, and denied appellee's April 2017 motion for attorney fees.

{¶ 9} On September 11, 2017, appellant filed an appeal and has assigned the following errors:

I

{¶ 10} "THE TRIAL COURT ERRED IN AWARDING SUMMARY JUDGMENT TO PLAINTIFF AS A MATTER OF LAW BECAUSE THE PROVISIONS OF ARTICLE XI, SECTION 11.01 OF THE CITY CHARTER DO NOT APPLY TO SETTLEMENTS."

II

{¶ 11} "THE TRIAL COURT ERRED IN AWARDING SUMMARY JUDGMENT TO PLAINTIFF AS A MATTER OF LAW BECAUSE THE AGREED CITY COUNCIL ORDER SETTLED ALL ISSUES, INCLUDING PLAINTIFF'S CLAIM FOR ATTORNEY FEES AND COSTS."

{¶ 12} On September 25, 2017, appellee filed a cross-appeal and has assigned the following errors:

CROSS-ASSIGNMENT OF ERROR I

{¶ 13} "THE TRIAL COURT ERRED BY FAILING TO AWARD FOX COSTS ASSOCIATED WITH LITIGATION MEANT TO ENFORCE THE PROVISIONS OF THE CITY OF PATASKALA'S CHARTER."

CROSS-ASSIGNMENT OF ERROR II

{¶ 14} "THE TRIAL COURT ERRED BY FINDING THAT THE CITY OF PATASKALA'S ACTIONS DID NOT CONSTITUTE BAD FAITH."

{¶ 15} This matter is now before this court for consideration.

I, II

{¶ 16} In its two assignments of error, appellant claims the trial court erred in granting summary judgment to appellee because 1) the provisions of Article XI, Section 11.01 of the City Charter do not apply to settlements, and 2) the City Council order settled all the issues, including appellee's claim for attorney fees and costs. We disagree.

{¶ 17} Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996) :

Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 472, 364 N.E.2d 267, 274.

{¶ 18} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987).

{¶ 19} In its January 25, 2017 judgment entry granting appellee's motion for summary judgment, the trial court stated: "After a review of the motion and the supporting evidence, the court finds that there exist no issues of material fact and that Plaintiff is entitled to judgment as a matter of law."

{¶ 20} In his motion for summary judgment filed January 3, 2017, appellee argued Section 11.01(G) of the city charter obligated appellant to pay his attorney fees because he was accused of malfeasance, but was not removed from office. Said section under Article XI states the following:

The Director of Law or special counsel appointed by the Director of Law shall prosecute the removal proceedings before the Council and any review thereof by the Courts. If a person accused is not finally removed, the City shall pay reasonable costs of the defense of such person and any compensation withheld pending the appeal of the action of the Council. (Emphasis added.)

{¶ 21} Section 11.01(C) outlines the procedures to be used in starting removal proceedings. The section provides specific notice requirements to the "accused."

{¶ 22} The November 25, 2013 letter appellee received from then Mayor Butcher accused him of committing malfeasance while in office as a member of City Council, and listed certain causes for removal. The letter notified him of a special council meeting scheduled for January 14, 2014, to discuss his removal. Appellee was invited to attend and be heard and present any defenses to the charges. Appellee attended the meeting with his counsel, as well as the meeting on January 15th. The parties settled the matter and appellee was not removed from office. Appellee argued because he was formally accused pursuant to Section 11.01(C) and not finally removed from office, Section 11.01(G) applied.

{¶ 23} In its opposition memorandum filed January 19, 207, appellant argued removal proceedings never commenced so therefore it was not obligated to pay appellee's attorney fees under Section 11.01(G). There were no opening statements, witnesses, exhibits, or closing statements. The matter was settled between the parties. Appellant pointed out that the city charter does not provide for the payment of attorney fees in the event of a settlement.

{¶ 24} We agree with appellee's position. Section 11.01(G) indicates the triggering event is the accusation. If the accused is not finally removed, as in this case, appellant "shall pay reasonable costs of the defense of such person." The Agreed Order under Section 4 even indicated "the removal proceedings against Council Member Fox are complete pursuant to these findings." In order to "complete" proceedings, they must have commenced to begin with. Appellant had engaged special counsel to "prosecute" the case, and said counsel was present during the January 14, and 15, 2014 meetings and in fact signed the Agreed Order.

{¶ 25} Appellant further argued the settlement agreement concluded the matter between the parties and did not provide for the payment of appellee's attorney fees. Appellant argued a demand for attorney fees should have been made at the time of settlement negotiations, and it would have never agreed to pay appellee's attorney fees as part of the settlement. What appellant would have agreed to at the time is unknown. What is known is that the language of Section 11.01(G) of the city charter obligates appellant to pay attorney fees if an accused is not finally removed from office. After appellant deemed the removal proceedings complete and appellee was not removed, appellee's bill for attorney fees was submitted to appellant under Section 11.01(G). There would be no need for appellee to make a demand for attorney fees during the settlement negotiations given the language of Section 11.01(G). The mayor and council members are presumed to know the provisions of the city charter, and in fact indicted during the January 14, 2014 meeting that they read and reread the city charter many times.

{¶ 26} Upon review, we find the trial court did not err in granting summary judgment to appellee.

{¶ 27} The parties stipulated to the reasonable and necessary attorney fees in the amount of $10,000 in lieu of holding an evidentiary hearing and incurring additional fees and costs. See Stipulation filed April 4, 2017. We find the trial court correctly awarded said amount to appellee via decision and judgment entry filed August 14, 2017.

{¶ 28} Assignments of Error I and II are denied.

CROSS-ASSIGNMENTS OF ERROR I AND II

{¶ 29} In his two cross-assignments of error, cross-appellant argues the trial court erred in denying his motion for attorney fees for the subject case and erred in not finding bad faith. We disagree.

{¶ 30} In its August 14, 2017 decision and judgment entry denying cross-appellant's motion for attorney fees for the subject case, the trial court stated the following:

After oral hearing held on the record, the court finds that Plaintiff failed to establish a basis upon which attorney fees in this action are permitted under the American Rule. Since no statute or contract exists which specifically authorizes a recovery of attorney fees, Plaintiff would be required to establish "bad faith" by Defendant in this litigation. Plaintiff has failed to establish that Defendant did anything which would constitute "bad faith" and is therefore not entitled to recovery of attorney fees.

{¶ 31} Cross-appellant argues he should be given an award for attorney fees as costs because 1) an attorney fees award is necessary to enforce the plain language of the city charter and to comport to its spirit and intent, and 2) cross-appellee acted in bad faith in failing to abide by Section 11.01(G) of the city charter.

{¶ 32} As noted by cross-appellant in his motion for attorney fees filed April 4, 2017 at page 5, "Ohio has long adhered to the 'American Rule' with respect to recovery of attorney fees: a prevailing party in a civil action may not recover attorney fees as a part of the costs of litigation." Parties are responsible for their own attorney fees in a civil case.

Exceptions to this rule include the existence of a statute or enforceable contract specifically providing for the recovery of attorney fees or if the prevailing party can establish bad faith on the part of the losing party. Nottingdale Homeowners' Association, Inc. v. Darby, 33 Ohio St.3d 32, 514 N.E.2d 702 (1987) ; Pegan v. Crawmer, 79 Ohio St.3d 155, 679 N.E.2d 1129 (1997). The "spirit and intent" of the city charter is not a factor.

{¶ 33} We note in cross-appellant's complaint filed August 23, 2016, he did not allege bad faith on the part of cross-appellee and did not request an award of attorney fees for the subject case. Cross-appellant did request "costs," but "[g]enerally, 'costs' do not include attorney fees unless such fees are by statute denominated costs or are by statute allowed to be recovered as costs in the case." Black's Law Dictionary 346 (6th Ed.1990). This case does not involve the recovery of attorney fees pursuant to any statutes.

{¶ 34} There is no statute or contract between the parties providing for the recovery of attorney fees in a subsequent collection action such as this case; therefore, the remaining exception is bad faith. Clearly the parties had opposing interpretations of Section 11.01(G) in light of the settlement. Mayor Compton, in an affidavit attached to cross-appellee's April 17, 2017 memorandum contra, averred he and City Council consulted with the Law Director and outside counsel to obtain legal advice on the issue of paying cross-appellant's attorney fees on the removal matter. Mayor Compton averred the following at paragraph 7:

Based upon the advice received from legal counsel, that there was no legitimate legal basis for the City of Pataskala to pay Mr. Fox's legal fees, since the parties had reached a settlement, no removal hearing proceeded, and the matter was settled without any demand or mention of attorney fees, the request to pay his legal fees was denied. Myself and City Council relied in good faith upon the advice received from legal counsel in reaching the decision to not pay Mr. Fox's attorney fees.

{¶ 35} Cross-appellee's reliance on the advice of counsel does not constitute bad faith.

{¶ 36} In his cross-appellate brief at 14-15, cross-appellant argues even after the trial court ruled in his favor, cross-appellee "refused to settle the matter" and instead pursued an appeal. Cross-appellant argues cross-appellee "continues its vendetta against Fox and continues to act in bad faith." In the stipulation which cross-appellant agreed to, cross-appellee specifically reserved its right to appeal any motions for attorney fees filed by cross-appellant, as well as any finding of liability on any issue. Pursuing its right to appeal does not constitute bad faith on the part of cross-appellee.

{¶ 37} We agree with the trial court that cross-appellant has failed to establish bad faith.

{¶ 38} Upon review, we find the trial court did not err in denying cross-appellant's motion for attorney fees for the subject case.

{¶ 39} Cross-Assignments of Error I and II are denied.

{¶ 40} The judgment of the Municipal Court of Licking County, Ohio is hereby affirmed.

Wise, John, P.J. and Hoffman, J. concur.


author: MAYLE, P.J.

text:
    Sharon Roth WILSON, Appellee v. Lewis Todd WILSON, Appellant
    No. E-17-042
    Court of Appeals of Ohio, Sixth District, Erie County.
    Decided: September 21, 2018
    Barry Vermeeren, Sandusky, for appellee.
    Geoffrey L. Oglesby, Sandusky, for appellant.
    DECISION AND JUDGMENT
   MAYLE, P.J.

{¶ 1} Appellant, Lewis Todd Wilson ("Todd"), appeals the July 25, 2017 judgment of the Erie County Court of Common Pleas, Domestic Relations Division, adopting a separation agreement between him and appellee, Sharon Wilson ("Sharon"), and granting the parties a legal separation. For the following reasons, we affirm.

I. Background and Facts

{¶ 2} On February 19, 2015, Sharon filed a complaint for legal separation. Following various pretrials and continuances, the court set the matter for a final hearing on February 11, 2016. On February 5, 2016, Todd sought leave to file an amended answer and a counterclaim for divorce. The trial court granted the motion on February 8, 2016, and Todd's amended answer and counterclaim were filed the same day. Sharon did not file an answer to Todd's counterclaim.

{¶ 3} On February 11, 2016, the parties appeared for the final hearing before a magistrate. At the beginning of the hearing, the magistrate noted that the parties had reached a resolution of the case, contingent upon Todd choosing one of two legal outcomes-divorce or legal separation-by April 6, 2016 (the date of the rescheduled final hearing). Sharon's attorney outlined the parties' agreement on the record, which was memorialized in a standard separation agreement pursuant to Supreme Court of Ohio Uniform Domestic Relations Form 16, and was submitted as joint exhibit A.

{¶ 4} On the record, Sharon's attorney explained the "changes" that the parties made to the standard form, which were both typewritten and handwritten. For example, Sharon's attorney explained that the parties included definite terms relating to all of the parties' marital property, including the marital home. Under the agreement, Todd was required to refinance the home within six months. After refinancing, Todd would pay Sharon $30,000 for her interest in the home, at which time Sharon would sign a quit-claim deed transferring the house to him. If Todd could not refinance, the house was to be sold and Todd would pay Sharon $30,000 from the proceeds of the sale for her interest in the home.

{¶ 5} Sharon's attorney also explained a handwritten edit regarding Todd's life insurance policy, which indicated that their three daughters would be listed as equal beneficiaries instead of Sharon, and another handwritten edit regarding spousal support, which stated that "spousal for tax purposes attributed to Obligee not Obligor."

{¶ 6} Under section five, "OTHER," joint exhibit A contains the following typewritten provision, which is crossed out with a single handwritten line: "The Parties shall split equally all Medical Insurance and non-covered medical expenses for each of them equally." In the margin, the following term is handwritten in its place: "H shall pay UAW retiree monthly medical premium, each party responsible for non covered." As Sharon's attorney explained:

The third change, and I think the last change and, again, if it is processed under a legal separation, on Fifth, on Page 5, it will read that the Husband shall pay the UAW Retiree monthly medical premium, and each party will be responsible for non-covered medical expenses. We do that because Sharon would remain on that very good UAW Retiree medical plan.
Those would be the only changes.
Now, if it is determined by April that this is going to be going through as a divorce rather than a legal separation, the only change between what I just read into the record, and we'll be giving to the Court, is if it goes through as a divorce the Fifth on Page 5 will read as it was typed, The parties shall split equally all medical insurance and non-covered medical expenses for each of them equally. So Sharon would be responsible for half of Todd's medical insurance costs, and half of his non-covered medical expenses, and also Todd would be responsible for half of the premium, and half of Sharon's non-covered expenses.

{¶ 7} Todd's attorney then confirmed that "that is the agreement" and that "Plan A and Plan B are described * * * correctly." The magistrate then had the following exchange with the parties:

THE COURT: All right. Mrs. Wilson, is that your understanding of the options available at this point?
MS. WILSON: Yes.
THE COURT: Do you have any questions about that?
MS. WILSON: No.
THE COURT: Okay. And-so you're asking the Court to, again, whichever option is chosen by Mr. Wilson, to adopt that as your agreement between you and him; is that correct?
MS. WILSON: Yes.
THE COURT: Do you have any questions about that?
MS. WILSON: No.
THE COURT: All right. Mr. Wilson, is that your understanding of the options before you?
MR. WILSON: Yes.
THE COURT: Do you have any questions about those options?
MR. WILSON: Not at this time.
THE COURT: Okay. You understand then when we come back in April you're going to need to pick one of those two options, and then we'll proceed with as [sic] either a legal separation or a divorce, depending on which option you choose?
MR. WILSON: Okay.
THE COURT: You understand that?
MR. WILSON: Yes.
THE COURT: Do you have any questions about that?
MR. WILSON: Nope.
THE COURT: Okay. And you're asking the Court to adopt these two options as the options that are going to be available to you in this divorce and/or legal separation; correct?
MR. WILSON: Yeah, I want to ask one-one question.
THE COURT: Do you want to ask your attorney, or-yeah. Any other questions, Mr. Wilson?
MR. WILSON: No.

The magistrate adopted the terms read on the record as "the two options available to the parties." The parties did not, however, execute the Separation Agreement that was submitted as joint exhibit A.

{¶ 8} On June 30, 2016, Todd filed a "motion to set aside oral agreement," in which he argued that he did not intend to come to a final, binding agreement at the February 11 hearing and that the agreement violated the statute of frauds by purporting to transfer an interest in the marital home without a signed writing. Sharon filed a memorandum in opposition on July 19, 2016.

{¶ 9} On July 22, 2016, the trial court ordered that a "2-HOUR EVIDENTIARY HEARING" would be held on September 21, 2016, before the magistrate. The next entry on the trial court's docket, however, is a "Motion Requesting an Order," filed by Todd on September 27, 2016, in which he states:

Now comes Mr. Wilson, by and through undersigned counsel, and respectfully requests this Court issue an order approving or denying the Motion to Set Aside Oral Agreement. Counsel was at the hearing on Wednesday September 21, 2016 [sic] when Magistrate Quinn stated they could hold the hearing but the motion would be denied. Pursuant to that, counsel requests it be reduced to writing.

{¶ 10} On February 17, 2017, Todd filed a request for findings of fact and conclusions of law relating to his motion to set aside oral agreement.

{¶ 11} The parties then appeared before the magistrate for a final hearing on February 21, 2017. At the beginning of the hearing, Todd's attorney argued that the parties did not reach a binding settlement agreement on February 11, 2016 because "there was no meeting of the minds because if [Todd] had to choose between one or the other he hadn't fully agreed to either one of them." In response, Sharon's attorney said that the separation agreement was the result of a "lengthy" process that involved many meetings and conversations between himself, Todd's former attorney, and the magistrate. Sharon's attorney represented that under the parties' oral agreement, as reached during the February 11, 2016 proceeding before the magistrate:

At that time, we went on the record, a Joint Exhibit A was submitted to the Court, being a comprehensive agreement for termination of the marriage; discussion was had with both parties at that time; and it was agreed that that-the contents of that document would be the final entry-would compose the final entry with the proviso that Mr. Wilson could elect to go forward with a divorce that he had filed as a counterclaim, or we would go forward with the legal separation.

{¶ 12} The magistrate stated that "[a]s [he] had indicated to both parties previous to this hearing, the motion to set aside the oral agreement that was filed in this case back on June 30th, 2016, is denied." The magistrate then indicated that "the Court is intent on proceeding today in regards to the original request for the legal separation."

{¶ 13} The hearing then proceeded with Sharon's attorney eliciting testimony from both parties indicating that they were incompatible, and the magistrate confirmed that they had been living apart for more than one year. The magistrate granted a legal separation and ordered Sharon's attorney to draft a magistrate's decision incorporating the parties' separation agreement, as previously submitted in joint exhibit A. The record, however, does not contain a proposed magistrate's decision from Sharon's attorney. Nor did the magistrate file a written decision with respect to the legal separation, specifically.

{¶ 14} The day after the hearing, the clerk file stamped and entered a written order that memorialized the magistrate's oral rulings at the beginning of the February 21, 2017 hearing. That is, the written order denied Todd's motion to set aside oral agreement because "[t]he parties have entered into a definite settlement agreement, 'Joint Exhibit A'." The magistrate further ordered that "Defendant Louis [sic] Todd Wilson shall choose 'Plan A' Legal Separation or 'Plan B' Divorce [sic]. Failing Defendant's choosing between 'Plan A' or 'Plan B', this case shall proceed upon Plaintiff's Complaint For a Legal Separation, alimony only."

{¶ 15} Sharon and Todd then filed separate proposed findings of fact and conclusions of law relating to the motion to set aside oral agreement. On May 4, 2017, the magistrate issued his findings of fact and conclusions of law. He found that the parties presented the court with a separation agreement at the final hearing on February 11, 2016. The agreement gave Todd two options that related solely to the allocation of medical insurance costs and out-of-pocket medical expenses. The magistrate also found that, although neither Sharon nor Todd signed the agreement, they jointly submitted it into evidence, the court questioned both of them about it, and neither party had any questions about the agreement. The magistrate then determined that Sharon and Todd had entered into a binding oral settlement agreement, that Todd understood his choices under the agreement, and that Todd was represented by competent counsel "during the entire process." He concluded that the parties' joint exhibit A represented "a very defined written integrated Settlement Agreement."

{¶ 16} On July 12, 2017-68 days after the findings of fact and conclusions of law were filed-Todd filed objections to the magistrate's decision. The trial court overruled Todd's objections because they were filed more than 14 days after the magistrate filed his findings of fact and conclusions of law and thus were untimely under Civ.R. 53.

{¶ 17} On July 25, 2017, the trial court filed a "final judgment for alimony only" that adopted the parties' settlement agreement, finding that:

The parties have presented the Court with a written Separation Agreement marked "Joint Exhibit A" or have read into the record a settlement of all issues, which the Court finds to be a fair and equitable division of property and debts and an appropriate resolution of all issues, knowingly and voluntarily entered into by the parties.

{¶ 18} Todd now appeals, raising three assignments of error:

Assignment of Error No. I. The Court erred in holding an uncontested hearing under protest when there was no agreement.
Assignment of Error No. II. The Court erred in denying the motion to set aside the oral agreement.
Assignment of Error No. III. The Court erred in approving the magistrate's decision when none was ever filed.

II. Law and Analysis

A. The Motion to Set Aside Oral Agreement

{¶ 19} We will address Todd's second assignment of error first. In it, he argues that the trial court abused its discretion by "not allow[ing] the oral 'agreement' to be set aside and a hearing to be held."

{¶ 20} A motion to set aside is the proper way for a party to seek rescission of an in-court settlement agreement. Spicer v. Spicer , 6th Dist. Erie No. E-14-101, 2015-Ohio-799, 2015 WL 995717, ¶ 11. If the motion disputes a term of the in-court settlement or contends that no settlement agreement exists, the trial court is required to hold an evidentiary hearing to resolve the dispute before entering judgment. Rulli v. Fan Co. , 79 Ohio St.3d 374, 683 N.E.2d 337 (1997), syllabus; Michelle M.S. v. Eduardo H.T. , 6th Dist. Erie No. E-05-053, 2006-Ohio-2119, 2006 WL 1120684, ¶ 13.

{¶ 21} If a trial court does not hold the required hearing, an appellant nonetheless waives this error for purposes of appellate review where "[t]he record shows no indication that appellant requested an evidentiary hearing or objected to the nature of the proceedings." Monea v. Campisi , 5th Dist. Stark No. 2004CA00381, 2005-Ohio-5215, 2005 WL 2401866, ¶ 11 ; Hopes v. Barry , 11th Dist. Ashtabula No. 2010-A-0042, 2011-Ohio-6688, 2011 WL 6881790, ¶ 33 ("by not specifically requesting a formal Rulli evidentiary hearing or objecting to the lack of such a hearing, appellants have waived this issue on appeal."). That is because "[a]n appellate court need not consider any error which counsel could have, but did not call to the trial court's attention at a time when the error could have been avoided or corrected." Monea at ¶ 11.

1. Todd Expressly Waived the Evidentiary Hearing

{¶ 22} Here, the docket indicates that a few days after Sharon filed her opposition to Todd's motion to set aside oral agreement, the trial court, sua sponte, scheduled a "2-HOUR EVIDENTIARY HEARING" for September 21, 2016.

{¶ 23} The next docket entry is a "motion requesting an order," filed by Todd on September 27, 2016-six days after the evidentiary hearing was scheduled to occur-which states:

Now comes Mr. Wilson, by and through undersigned counsel, and respectfully requests this Court issue an order approving or denying the Motion to Set Aside Oral Agreement. Counsel was at the hearing on Wednesday September 21, 2016 [sic] when Magistrate Quinn stated they could hold the hearing but the motion would be denied. Pursuant to that, counsel requests it be reduced to writing.

{¶ 24} This filing demonstrates that when the parties appeared for the scheduled evidentiary hearing, the magistrate stated that he intended to deny Todd's motion but "they could hold the hearing" nonetheless. At that point, Todd could have either insisted that the court proceed with the evidentiary hearing or objected to the magistrate's intention to issue a ruling on his motion without a hearing. He did neither. Instead, he filed a motion for a written order from the magistrate "approving or denying the Motion to Set Aside Oral Agreement"-which expressly acknowledged, but did not object to , the magistrate's failure to hold an evidentiary hearing on his motion.

{¶ 25} Then, Todd went a step further and expressly waived the evidentiary hearing in a subsequent court filing. On April 3, 2017, Todd filed proposed findings of facts and conclusions of law related to his motion to set aside oral agreement. In that filing, Todd affirmatively stated that although an evidentiary hearing on such a motion is required under Rulli , 79 Ohio St.3d 374, 683 N.E.2d 337, at syllabus, he believed that "[t]his is inconsequential herein and no hearing need be held ." (Emphasis added.)

{¶ 26} In light of Todd's express representations to the trial court that "no hearing need be held," he cannot now complain that the trial court erred by failing to hold a hearing on his motion to set aside oral agreement. Todd expressly waived this error, which precludes appellate review of the issue.

2. Todd Failed to File Timely Objections to the Magistrate's Decision

{¶ 27} Todd argues that the magistrate abused his discretion by denying his motion to set aside oral agreement. As a preliminary matter, at the appellate stage, we do not determine whether the magistrate abused his discretion but, rather, whether the trial court abused its discretion by adopting the magistrate's decision. Berry v. Firis , 9th Dist. Medina No. 05CA0109-M, 2006-Ohio-4924, 2006 WL 2714671, ¶ 7, quoting Mealey v. Mealey , 9th Dist. Wayne No. 95CA0093, 1996 WL 233491 (May 8, 1996) (" 'Any claim of trial court error must be based on the actions of the trial court, not on the magistrate's findings or proposed decision.' "). And, if an appellant did not file timely objections to the magistrate's decision as required by Civ.R. 53, that party cannot assert any error on appeal related to that decision "[e]xcept for a claim of plain error." Civ.R. 53(D)(3)(b)(iv). As explained below, Todd did not file timely objections to the magistrate's decision and is therefore limited to a claim of plain error.

{¶ 28} On February 22, 2017, the magistrate denied Todd's motion to set aside oral agreement in a written "Magistrate's Order" in which he concluded the following:

The parties have entered into a definite settlement agreement, "Joint Exhibit A".
IT IS FURTHER ORDERED that on February 21, 2017, Defendant Louis [sic] Todd Wilson shall choose "Plan A" Legal Separation or "Plan B" Divorce [sic]. Failing Defendant's choosing between "Plan A" or "Plan B", this case shall proceed upon Plaintiff's Complaint For a Legal Separation, alimony only.

{¶ 29} In a motion filed on February 17, 2017, and again at the hearing on February 21, 2017, Todd's counsel requested findings of fact and conclusions of law related to Todd's motion to set aside oral agreement. On March 17, 2017, the magistrate issued an order stating that the parties should submit such proposed findings of fact and conclusions of law by April 3, 2017. Sharon and Todd both filed proposed findings.

{¶ 30} On May 4, 2017, the magistrate issued his findings of fact and conclusions of law, in which he denied Todd's motion to set aside oral agreement and included the following legal analysis:

In this case, a very defined written integrated Separation Agreement was entered into the record by both parties as "Joint Exhibit A" with the Defendant to be given leave to decide whether he would choose to proceed in an alimony only action, paying the Plaintiff's U.A.W. retiree insurance premium, and the Plaintiff being responsible for all non-covered expenses, or: "B", choosing to proceed on his Counter-Claim for Divorce wherein both parties would split equally the medical insurance premiums and non-covered medical expenses for each. The choice given to the Defendant, although somewhat different, doesn't substantially differ from choices found in many agreed-upon Separation Agreements wherein one party can choose to either refinance a real estate parcel, removing the other person's obligation on the note, or choosing to sell the property with an agreed division of profits or losses.
It was made clear to the Defendant on the record, by both his legal counsel at the time as well as the Court what his two options were. The Defendant indicated on the record both his understanding and agreement of the issue at hand. The Defendant was represented by competent counsel during the entire process.

{¶ 31} On July 12, 2017-68 days later-Todd filed objections to the magistrate's order, claiming that his objections were timely because the order had "yet to be journalized." The record, however, clearly reveals that the magistrate's order was, in fact, properly journalized on May 5, 2017. Thus, by order dated July 25, 2017, the trial court properly overruled Todd's objections because they were not filed within 14 days after the magistrate's findings of fact and conclusions of law and, therefore, were untimely under Civ.R. 53(D)(3)(b)(i).

{¶ 32} Notably, although the trial court overruled Todd's objections in that order, it did not expressly adopt the magistrate's order at that time. But, in its "Final Judgment For Alimony Only" dated July 25, 2017, the trial court fully adopted and expressly incorporated the parties' separation agreement that was memorialized on February 11, 2016, as joint exhibit A, and independently concluded:

The parties have presented the Court with a written Separation Agreement marked "Joint Exhibit A" or have read into the record a settlement of all issues, which the Court finds to be a fair and equitable division of property and debts and an appropriate resolution of all issues, knowingly and voluntarily entered into by the parties.

{¶ 33} We find that this express conclusion was necessarily an adoption of the magistrate's May 4, 2017 decision, in which he found that "a very defined written integrated Separation Agreement was entered into the record by both parties as 'Joint Exhibit A.' " See Redmond v. Wade , 4th Dist. Lawrence No. 16CA16, 2017-Ohio-2877, 2017 WL 2257731, ¶ 18, fn. 3 ("Although the trial court did not explicitly state whether it chose to adopt, modify, or reject the magistrate's decision pursuant to Civ.R. 53(D)(4)(b), the court's ultimate judgment reflects that it largely adopted the magistrate's decision.").

Accordingly, given that Todd did not file timely objections to the May 4, 2017 magistrate's decision, Todd has waived all but plain error review of the trial court's adoption of joint exhibit A as the parties' separation agreement.

3. The Trial Court Did Not Commit Plain Error

{¶ 34} The Supreme Court of Ohio has instructed that when applying the doctrine of plain error in a civil case, "the doctrine is sharply limited to the extremely rare case involving exceptional circumstances where the error, left unobjected to at the trial court, rises to the level of challenging the legitimacy of the underlying judicial process itself. * * * The plain error doctrine should never be applied to reverse a civil judgment simply because a reviewing court disagrees with the result obtained in the trial court * * *." Goldfuss v. Davidson , 79 Ohio St.3d 116, 122, 679 N.E.2d 1099 (1997). (Emphasis sic.)

{¶ 35} Here, Todd has not asserted a claim for plain error. He, therefore, has waived any alleged error on appeal. State v. Perkins , 9th Dist. Medina No. 17CA0048-M, 2018-Ohio 2240, 2018 WL 2973331, ¶ 8.

{¶ 36} We, however, retain discretion to conduct a plain error analysis nonetheless. Wood v. Fillinger , 8th Dist. Cuyahoga No. 100464, 2014-Ohio-1842, 2014 WL 1776022, ¶ 11, fn. 2, citing Rose v. Cochran , 2d Dist. Montgomery No. 25498, 2013-Ohio-3755, 2013 WL 4714537, ¶ 40. Having reviewed the entire record, we do not find any basis to conclude that this is an "extremely rare" or "exceptional" case that requires reversal for plain error. Specifically, we note that although Todd asserts a purely legal argument relating to the trial court's enforcement of the parties' separation agreement-i.e., that the agreement allegedly violates the statute of frauds because it purports to award an interest in the marital home but was not signed by the parties-that argument is unfounded.

{¶ 37} Ohio's statute of frauds, codified in R.C. Chapter 1335, states in pertinent part that "No lease, estate, or interest * * * of, in, or out of lands * * * shall be assigned or granted except by deed, or note in writing, signed by the party assigning or granting it * * * or by act and operation of law." R.C. 1335.04. In-court settlement agreements do not need to comply with the statute of frauds. Dept. of Natural Resources v. Hughes , 6th Dist. Erie No. E-00-002, 2000 WL 1752645 (Nov. 30, 2000) ; Michaels v. Michaels , 9th Dist. Medina No. 09CA0047-M, 2010-Ohio-963, 2010 WL 892074, ¶ 15 ("The statute of frauds does not apply when a court codifies an in-court settlement by way of a written journal entry."); Thomas v. Thomas , 5 Ohio App.3d 94, 99, 449 N.E.2d 478 (5th Dist.1982) ("We find that the Statute of Frauds has no application to an 'in-court' settlement stipulation nor to the order of a court * * *."). Courts have arrived at this conclusion because settlement agreements, in and of themselves, do not assign or grant a lease, estate, or interest in land. See, e.g., Rothfusz v. Fitzgerald , 8th Dist. Cuyahoga No. 64526, 1994 WL 30436 (Feb. 3, 1994) (settlement agreement did not violate statute of frauds because "[t]he real estate transfer was a mere by-product of the agreement to settle.").

{¶ 38} For all these reasons, we find that Todd's second assignment of error, which assigns error related to the motion to set aside oral agreement, is not well-taken.

B. The Final Hearing Could Proceed Despite Todd's "Protest"

{¶ 39} In his first assignment of error, Todd contends that the magistrate should not have held a final hearing when Todd participated "under protest" and objected to the terms of the separation agreement.

{¶ 40} Todd's arguments are premised solely on the separation agreement being invalid; he does not cite any case law to support his position that a final hearing in a divorce or legal separation case cannot proceed if one party goes forward "under protest." Given that we have already concluded that any error relating to the trial court's enforcement of the parties' settlement agreement has been waived, and that this is not an exceptional case involving plain error, we find that Todd's first assignment of error is not well-taken.

C. The Trial Court had the Authority to Adopt the Separation Agreement without a Magistrate's Decision

{¶ 41} In his third assignment of error, Todd argues that the trial court abused its discretion "in approving the magistrate's decision when none was ever filed." Although Todd references both the final hearing on February 21, 2017, and the findings of fact and conclusions of law that the magistrate issued on the motion to set aside, it appears that this assignment of error relates only to the trial court issuing a final judgment entry that granted a legal separation without an underlying written decision from the magistrate that recommended granting a legal separation.

{¶ 42} Todd's argument is misplaced, however, because the trial court did not adopt recommendations from the magistrate that were never memorialized in a magistrate's decision. Rather, as discussed, the trial court implicitly adopted the magistrate's written May 4, 2017 decision-in which the magistrate found that "a very defined written integrated Separation Agreement was entered into the record by both parties as 'Joint Exhibit A' "-when the trial court independently concluded that the "written Separation Agreement marked 'Joint Exhibit A' * * * [was] knowingly and voluntarily entered into by the parties." Then, once the validity of the written separation agreement marked joint exhibit A was established, the trial court granted Todd and Sharon a legal separation based on that separation agreement.

{¶ 43} When the parties in a divorce or legal separation case reach an in-court settlement, the trial court has the discretion to (1) adopt the agreement in full by incorporating it into a final judgment entry; (2) reject some of the terms in the agreement, make independent rulings on those terms, and incorporate the independent rulings and the remaining terms of the agreement into a final judgment entry; or (3) reject the entire agreement and make independent rulings on all of the issues raised in the complaint. Lambert v. Lambert , 6th Dist. Fulton No. F-05-002, 2005-Ohio-6145, 2005 WL 3093449, ¶ 16. The trial court retains its authority to adopt a separation agreement and issue a final judgment entry even after the case is referred to a magistrate. See Richmond v. Evans , 8th Dist. Cuyahoga No. 101269, 2015-Ohio-870, 2015 WL 1120967, ¶ 50. And although Civ.R. 53(D)(3)(a)(i) requires that "a magistrate shall prepare a magistrate's decision respecting any matter referred under Civ.R. 53(D)(1)," the magistrate is not required to issue a decision when there is "nothing for the magistrate to decide." Id.

{¶ 44} Here, the trial court chose to adopt the parties' in-court settlement agreement. Because Todd and Sharon resolved their issues-even though Todd is dissatisfied with the resolution-the trial court did not need a magistrate's decision before it could exercise its authority to adopt the parties' settlement agreement as outlined in joint exhibit A. Id. Accordingly, we find that the trial court did not err by issuing the final judgment entry. Todd's third assignment of error is not well-taken.

{¶ 45} Conclusion

{¶ 46} Based on the foregoing, the July 25, 2017 judgment of the Erie County Court of Common Pleas, Domestic Relations Division, is affirmed. Todd is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Mark L. Pietrykowski, J.

Arlene Singer, J.

CONCUR.

      The magistrate's order contains the handwritten notations "J 783/1272" and "5-5-17," and the docket entry for the findings of fact and conclusions of law lists "783-1272-783" in the column labeled "Journal Book-Page-Nbr."