author: JENSEN, P.J.

text:
    PAUL CHEATHAM IRA, Appellant v. The HUNTINGTON NATIONAL BANK, Appellee
    No. L-16-1292
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: December 22, 2017
    Ronald R. Parry, Cincinnati, for appellant.
    J. Philip Calabrese, Cleveland, Jay A. Yurkiw, Robert W. Trafford and Ryan L. Graham, Columbus, for appellee.
    DECISION AND JUDGMENT
   JENSEN, P.J.

{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common Pleas, denying appellant's, Paul Cheatham IRA, motion to certify a class. For the reasons that follow, we reverse.

I. Facts and Procedural Background

{¶ 2} The facts for purposes of this appeal are not in dispute. On May 19, 2015, appellant filed this class action lawsuit against appellee, The Huntington National Bank, on behalf of itself and other bondholders who invested funds into a municipal bond issue described as "$6,590,000 COUNTY OF LUCAS OHIO HOSPITAL FACILITIES REFUNDING REVENUE (NON-TAXABLE) BONDS, SERIES 1998 (VILLA NORTH PROJECT) CUSIP 54309 BP6, 549309 BQ4, 549309 BR2, 549309 BS0." The complaint alleged that Lucas County was the technical obligor on the bonds for tax purposes, but in reality, Foundation for the Elderly, Inc. ("Foundation") was the obligor and lessee of the Villa North nursing home project. Appellee served as the trustee for the bondholders and as lessor of the project pursuant to a Trust Indenture entered into between appellee and Lucas County.

{¶ 3} Sometime before June 2003, Foundation went into default, and West Toledo Healthcare became the substitute obligor. By December 2003, Benchmark Healthcare of Toledo, Inc. ("Benchmark") had become the obligor in place of West Toledo Healthcare, and had defaulted on the bond payments. Notably, appellee provided notices to the bondholders of the defaults and changes in obligors. In May 2004, Benchmark filed for reorganization under Chapter 11 of the Bankruptcy Code, and in December 2007, filed its First Amended Plan of Reorganization. After the bondholders voted in favor of the plan, the bankruptcy court approved the plan. Relevant here, appellant began purchasing these bonds for a fraction of the face value on November 3, 2003, and continued to purchase them through June 7, 2007.

{¶ 4} By July 2009, Benchmark had failed to implement the amended reorganization plan. Thus, the bankruptcy was dismissed, and appellee filed a foreclosure action against Benchmark. In November 2014, the Villa North project was sold and a final distribution was made to the bondholders. In the final distribution, the bondholders only received approximately $350,000 of the $6,590,000 initial bond issue.

{¶ 5} Within the class action complaint, appellant asserted claims for breach of fiduciary duty, breach of trust under R.C. 5801.01 et seq., negligence, breach of contract, and liability for mismanagement of the Villa North nursing home project. In general, appellant alleged that appellee "did virtually nothing to protect the interest of the Bondholders, while collecting substantial sums of Bondholder money as its compensation." Upon motion of appellee, the trial court dismissed all of the claims except the breach of contract claim as being barred by the statute of limitations.

{¶ 6} Thereafter, appellant moved to certify a class on the remaining breach of contract claim, describing the class as "All persons or entities who own bonds." Appellee opposed the motion for class certification, arguing, inter alia, that appellant had not satisfied the requirement under Civ.R. 23(B)(3) that, "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." In particular, appellee argued that the class is comprised of bondholders who purchased the bonds at different times and after different key events. Thus, the facts, evidence, and related legal issues of liability would differ among class members based on when the members acquired the bonds, or whether the members approved the bankruptcy reorganization plan. Appellant, on the other hand, argued that the issue of whether appellee breached the Trust Indenture was common to all current bondholders because under R.C. 1308.16(A), "[A] purchaser of a certificated or uncertificated security acquires all rights in the security that the transferor had or had power to transfer." Appellant concluded, therefore, that the right to sue for breach of contract that was held by bondholders at the time of the breach transferred to subsequent purchasers of the bonds.

{¶ 7} On November 16, 2016, the trial court entered its judgment denying appellant's motion to certify a class. The trial court reasoned that the term "rights in the security" under R.C. 1308.16(A) does not include a claim against a third party for breach of contract, such as appellant's claim in the current action. Consequently, because appellant has alleged numerous breaches over a significant period of time, and because the claims do not transfer to subsequent purchasers, different class members would have different potential damages and would emphasize different potential breaches. Therefore, the trial court determined that appellant had not satisfied the requirement under Civ.R. 23(B)(3). Further, because the trial court found the predominance issue in Civ.R. 23(B)(3) to be determinative, it did not consider any of the other Civ.R. 23 requirements for bringing a class action.

II. Assignment of Error

{¶ 8} Appellant has timely appealed the trial court's November 16, 2016 judgment, asserting one assignment of error for our review:

1. The trial court incorrectly interpreted the provisions of R.C. 1308.16(A) ( § 8-302 of the Uniform Commercial Code (UCC)) in ruling that the transferors' right to file a lawsuit was not one of the rights that was transferred when a municipal bond (an investment security) was acquired by the transferee, the Plaintiff-Appellant.

III. Analysis

{¶ 9} We review the trial court's decision in determining whether a class action may be maintained for an abuse of discretion. State ex rel. Davis v. Pub. Emps. Retirement Bd. , 111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 444, ¶ 18. An abuse of discretion connotes that the trial court's attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 10} "[A]ppellate courts overwhelmingly, if not universally, give trial courts broad discretion in deciding whether to certify a class." Davis at ¶ 18, quoting Hamilton v. Ohio Savs. Bank , 82 Ohio St.3d 67, 70, 694 N.E.2d 442 (1998). "[T]he appropriateness of applying the abuse-of-discretion standard in reviewing class action determinations is grounded not in credibility assessment, but in the trial court's special expertise and familiarity with case-management problems and its inherent power to manage its own docket." Id. "Therefore, 'while a trial court's determination concerning class certification is subject to appellate review on an abuse-of-discretion standard, due deference must be given to the trial court's decision' and any 'finding of abuse of discretion, particularly if the trial court has refused to certify, should be made cautiously.' " Id. , quoting Marks v. C.P. Chem. Co. , 31 Ohio St.3d 200, 201, 509 N.E.2d 1249 (1987).

{¶ 11} The Ohio Supreme Court has recognized seven requirements that must be satisfied before an action may be maintained as a class action under Civ.R. 23 :

(1) an identifiable class must exist and the definition of the class must be unambiguous; (2) the named representatives must be members of the class; (3) the class must be so numerous that joinder of all members is impracticable; (4) there must be questions of law or fact common to the class; (5) the claims or defenses of the representative parties must be typical of the claims or defenses of the class; (6) the representative parties must fairly and adequately protect the interests of the class; and (7) one of the three Civ.R. 23(B) requirements must be met. Hamilton at 71, 694 N.E.2d 442, citing Civ.R. 23(A) and (B).

{¶ 12} Here, the trial court's decision, and this appeal, focuses on whether appellant has satisfied Civ.R. 23(B)(3), which provides,

A class action may be maintained if Civ.R. 23(A) is satisfied, and if:
* * *
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(a) the class members' interests in individually controlling the prosecution or defense of separate actions;
(b) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(d) the likely difficulties in managing a class action.

{¶ 13} In its appellate brief, appellant frames the issue we must decide as "whether the purchaser of a bond acquires causes of action that arose, under the terms of a Trust Indenture, prior to the time that the bondholder acquired the bonds." Appellant acknowledges that if we determine that a subsequent purchaser does not acquire those causes of action, then certification of the class is not appropriate. However, appellant takes the position that the subsequent purchaser of a bond does acquire the cause of action pursuant to R.C. 1308.16, which is Ohio's version of U.C.C. § 8-302.

{¶ 14} R.C. 1308.16 provides, in its entirety,

(A) Except as otherwise provided in divisions (B) and (C) of this section, a purchaser of a certificated or uncertificated security acquires all rights in the security that the transferor had or had power to transfer.
(B) A purchaser of a limited interest acquires rights only to the extent of the interest purchased.
(C) A purchaser of a certificated security who as a previous holder had notice of an adverse claim does not improve its position by taking from a protected purchaser.

{¶ 15} Appellant argues that his claim against appellee is a "right in the security" because the Trust Indenture explains that the trust is to be executed "for the equal and proportionate benefit, security and protection of all present and future holders and owners of the Bonds issued or to be issued under and secured by this Indenture." The trial court, recognizing that this is an issue of first impression, disagreed. In reaching its decision, the trial court relied on the reasoning set forth in Consol. Edison, Inc. v. Northeast Util. , 318 F.Supp.2d 181 (S.D.N.Y.2004), rev'd on other grounds , Consol. Edison, Inc. v. Northeast Util. , 426 F.3d 524 (2d Cir.2005).

{¶ 16} In Consolidated Edison , the dispute arose over a failed merger between Consolidated Edison, Inc. ("Con Ed") and Northeast Utilities ("NU"). As part of the agreement, Con Ed agreed to purchase all outstanding shares of NU at a substantial premium over the market price. Shortly before the merger was completed, though, Con Ed announced that it would not proceed. Con Ed then filed an action seeking a declaratory judgment that it had no obligations under the merger agreement. NU counterclaimed, arguing that Con Ed repudiated and breached the agreement. NU sought to recover, in part, the "lost premium" on behalf of its current and future shareholders as third-party beneficiaries to the merger agreement. Robert Rimkoski intervened as a defendant and filed a claim against Con Ed, also seeking to recover the lost premium due to Con Ed's breach of the merger agreement. Rimkoski sought to represent a class of similarly situated individuals who owned shares of NU on March 5, 2001, the date of the alleged breach. The question before the court was whether "the third-party beneficiary claim belong[s] to those who held NU shares at the time of Con Ed's alleged breach on March 5, 2001, * * * or to those who are holding NU shares at the time that a judgment against Con Ed is entered, collected, or distributed." Id. at 183. More specifically, "Where shareholders are third-party beneficiaries of a contract between the corporate issuer of the stock and a third party, is the right to sue that third party for breach of the contract automatically transferred to a subsequent purchaser of the stock?" Id.

{¶ 17} NU argued, as appellant does here, that the stock-related contract claims against third parties were automatically assigned to subsequent purchasers of the stock by virtue of New York's version of U.C.C. § 8-302(a), which is identical to R.C. 1308.16(A). The trial court rejected this argument, finding that the legislative history and structure of the U.C.C. "confirm that § 8-302(a), rather than defining what rights are in the security, involves the mechanism for transferring rights and applies primarily to disputes over the quality of title and the competing ownership rights passed from transferor to transferee." Id. at 188. The court concluded that,

Section 8-302 does not define "rights in a security" or codify a rule assigning to purchasers any claim accrued while possessing the security. The provision simply provides that whatever "rights in the security" are, they are automatically transferred to a purchaser unless (a) the transferor did not own or control them, (b) the purchase was for a limited interest, or (c) the purchaser is a prior holder with notice of an adverse claim taking from a protected purchaser. Id. at 189-190.

{¶ 18} Having concluded that U.C.C. § 8-302 automatically conveys only the "rights in the security," the trial court then determined that the "rights in the security" do not include the rights of "third-party beneficiaries arising out of agreements separate from the contract embodied in the security." Id. at 190. This is where we find Consolidated Edison to be distinguishable.

{¶ 19} Whereas the parties in Consolidated Edison were bringing counterclaims against a separate and unrelated company based on its purported breach of an agreement with the company that issued the shares, here, appellant is bringing a claim against the trustee for the bondholders based on a breach of the Trust Indenture. The Trust Indenture is part of the "bond proceedings." R.C. 140.01(J) (" 'Bond proceedings' means one or more ordinances, resolutions, trust agreements, indentures, and other agreements or documents, and amendments and supplements to the foregoing, or any combination thereof, authorizing or providing for the terms, including any variable interest rates, and conditions applicable to, or providing for the security of, obligations and the provisions contained in such obligations."); see also R.C. 140.06(I) ("Such obligations may be secured additionally by a trust agreement or indenture between the public hospital agency and a corporate trustee which may be any trust company or bank * * *. Any such agreement or indenture may contain, as part thereof, any of the bond proceedings, * * * and other provisions which are customary or appropriate in an agreement or indenture of such type, including but not limited to: * * * (3) The rights and remedies of the holders of obligations and of the trustee, and provisions for protecting and enforcing them * * *."). Thus, a claim for breach of the Trust Indenture arises out of the contract with the bondholders, and is therefore properly considered a "right in the security" that passes to a subsequent purchaser under R.C. 1308.16(A).

{¶ 20} Appellee argues that this result improperly transforms R.C. 1308.16(A) to provide for the automatic transfer of all rights "related to" the security or "accrued while possessing" the security, and cites two cases for the proposition that ownership of a security does not automatically result in an assignment of any claims. We find the cases cited by appellee to be inapposite.

{¶ 21} In In re Nucorp Energy Secs. Litigation , 772 F.2d 1486 (9th Cir.1985), the plaintiffs (the Phelps Committee) brought an action against the indenture trustee, raising a federal claim for breach of trust under the Trust Indenture Act, as well as state-law claims for breach of fiduciary duty, willful misconduct, fraud and deceit, and negligence. The action was related to a class action brought by parties who purchased debentures between October 1, 1981, and January 20, 1982. In the class action, the class argued that the indenture trustee knew that the disclosure documents accompanying the debenture issue were misleading. The Phelps Committee represents purchasers who bought the debentures from class members after January 20, 1982. In bringing its action, the Phelps Committee argued that it automatically acquired the sellers' causes of action when it purchased the debentures from the class members. Thus, the issue before the court was "whether, under federal or state law, the direct purchasers' rights were automatically transferred to the subsequent purchasers." Id. at 1488.

{¶ 22} As it pertains to the federal claim for breach of trust under the Trust Indenture Act, the Ninth Circuit held that federal law applied to the assignability of such claims, and under federal law, there was no remedy for "subsequent purchasers to whom no misrepresentations were made directly or indirectly and to whom no statutorily provided cause of action was expressly assigned." Id. at 1490. As to the assignment of the state-law claims, the court found that New York law applied, and under that law, the state-law claims were not automatically transferred. In so holding, the Ninth Circuit agreed with the rationale that "[i]f causes of action were automatically transferred, defendants could be subject to double liability, and the transferees would recover damages even though they had suffered no injury, while the injured transferors would recover nothing." Id. at 1493.

{¶ 23} Likewise in Bluebird Partners, L.P. v. First Fid. Bank, N.A. , 85 F.3d 970, 971 (2d Cir.1996), the Second Circuit affirmed the trial court's holding that "[A] bondholder's claim under the [Trust Indenture Act] against an indenture trustee is not automatically assigned to a subsequent purchaser of the bond."

{¶ 24} However, Nucorp and Bluebird both involved claims under the Trust Indenture Act, which is not relevant here. Further, neither Nucorp or Bluebird considered U.C.C. § 8-302 to determine whether a claim for breach of the Trust Indenture Act was a "right in the security." Finally, to the extent that Nucorp addressed attendant state-law claims against the indenture trustee, we note that those claims sounded in tort, not in contract for breach of the trust indenture agreement. Thus, we do not find Nucorp or Bluebird relevant to resolving the issue before us.

{¶ 25} Instead, we find this case to be more closely analogous to R.A. Mackie & Co., L.P. v. Petrocorp Inc. , 329 F.Supp.2d 477 (S.D.N.Y.2004), which was decided by the same court that decided Consolidated Edison . In R.A. Mackie , the plaintiffs were secondary purchasers of warrant certificates that were issued pursuant to a Warrant Agreement between Southern Mineral Corporation and American Stock Transfer and Trust Company. Southern Mineral Corporation ultimately was purchased by and merged into PetroCorp. Thereafter, plaintiffs filed a suit against PetroCorp, asserting, inter alia, two contract claims for breach of the Warrant Agreement, where the breach occurred prior to the plaintiffs acquiring the warrants. Relevant here, PetroCorp asserted as an affirmative defense that the right to bring claims for breach of the Warrant Agreement was not transferred with the warrants when the plaintiffs purchased them.

{¶ 26} Relying on Texas' version of U.C.C. 8-302(a), the trial court rejected PetroCorp's argument. Specifically, the trial court noted that the claim was asserted against the successor-in-interest to the issuer of the warrants, and was based on the warrant agreement. The court found that "[t]he Warrants are a contract between PetroCorp and the Warrant holders that provide rights through the terms of the Warrant Certificate and the Warrant Agreement. The Warrant holders' rights in the Warrants 'thus include the rights against the issuer [here, PetroCorp] under the contract embodied in the security [here, the Warrant Agreement] as supplemented by federal and state law.' " Id. at 507, quoting Consolidated Edison , 318 F.Supp.2d at 192. Therefore, the court held that the plaintiffs' claim for breach of the warranty agreement was a "right in the security" that automatically transferred with the purchase of the warrant. Id.

{¶ 27} Similarly, in the case before us, appellant's cause of action arises from a breach of the Trust Indenture, which is part of the contract with the bondholders. Appellee argues that R.A. Mackie is distinguishable because in that case the cause of action was against the issuer, not the indenture trustee. However, we do not find that distinction to be meaningful since the basis for the claim is grounded in the same instrument that is part of the contract with the bondholders. Appellee's position leads to the incongruous result that breach of the trust indenture by an issuer is a "right in the security," but breach of the same trust indenture by the trustee is not. Therefore, we hold that a contract claim for breach of the Trust Indenture, whether asserted against the trustee or the obligor, arises out of the contract with the bondholders and is thus a "right in the security" that automatically transfers to subsequent purchasers pursuant to R.C. 1308.16(A).

{¶ 28} Accordingly, appellant's assignment of error is well-taken.

IV. Other Civ.R. 23 Requirements

{¶ 29} In addition to arguing in opposition to appellant's assignment of error, appellee argues that class certification under Civ.R. 23 is still not appropriate as appellant has failed to satisfy the other requirements of that rule. However, because the trial court based its determination solely on Civ.R. 23(B)(3), and did not consider any of the other requirements, we decline to rule on those issues for the first time on appeal. "If we were to reach issues that had not been addressed by the trial court in the first instance, we would be usurping the role of the trial court and exceed[ing] our authority on appeal." Catalanotto v. Byrd , 9th Dist. Summit No. 27824, 2016-Ohio-2815, 2016 WL 2343345, ¶ 12, quoting State v. M.D. , 9th Dist. Lorain No. 14CA010657, 2015-Ohio-4003, 2015 WL 5728256, ¶ 7. Therefore, we must remand the matter to the trial court to consider the remaining Civ.R. 23 requirements.

V. Conclusion

{¶ 30} For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas is reversed. The matter is remanded to the trial court to consider the remaining Civ.R. 23 requirements for class certification and for further proceedings consistent with this decision. Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment reversed.

Thomas J. Osowik, J.

CONCUR.

Christine E. Mayle, J.

CONCURS AND WRITES SEPARATELY.

MAYLE, J.

{¶ 31} I concur with the majority's conclusion that, when appellant purchased the bonds at issue, it acquired "all rights in the security that the transferor had or had power to transfer" under R.C. 1308.16(A) and, in this case, such "rights" included accrued claims against appellee for breach of the Trust Indenture. The majority bases its conclusion on R.C. 140.01(J) and (I), which provide that a trust indenture is a part of the "bond proceedings," and therefore a "right" that passed to appellant under R.C. 1308.16(A). In my view, while that demonstrates that a bondholder has standing to sue under a trust indenture, it does not answer the ultimate question of whether a bondholder has standing to sue for prior breaches of that agreement. I believe that the answer to that question depends upon the precise terms of the particular "security" at issue.

{¶ 32} A case from the Supreme Court of California, National Reserve Co. v. Metropolitan Trust Co. , 17 Cal.2d 827, 112 P.2d 598 (1941), is instructive here, and has been cited with approval by at least one Ohio court. See 17 Mile, L.L.C. v. Kruzel , 8th Dist. Cuyahoga No. 99358, 2013-Ohio-3005, 2013 WL 3583616, ¶ 13 (citing the rule announced by National Reserve when considering whether the assignment of "all rights" to a lease agreement included the right to accrued claims for past rent).

{¶ 33} In National Reserve, the Metropolitan Trust Company of California, as trustee, and the National Thrift Corporation of America, as trustor, entered into a written trust agreement under which the Trust Company was to hold in trust a fund as security for the bonds, contracts, certificates, and annuity agreements that the Thrift Company would sell as investments. Ward Esplin purchased a participation certificate from the Thrift Company, and then later assigned "all of his right, title, and interest" in the participation certificate to the Reserve Company. The Reserve Company later instituted an action against the Trust Company, on its behalf and on behalf of all other holders of such contracts and certificates, seeking recovery for various breaches of the trust agreement that occurred before the assignment. The court considered whether Esplin's assignment of "all * * * right title and interest" in the participation certificate to the Reserve Company included the right to sue for a prior breach of the trust agreement.

{¶ 34} The court first recognized that "[i]n determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling." Natl. Res. at 832, 112 P.2d 598. The court then stated the following rule, based on its review of case law across various states:

Unless an assignment specifically or impliedly designates them, accrued causes of action arising out of an assigned contract, whether ex contractu or ex delicto , do not pass under the assignment as incidental to the contract if they can be asserted by the assignor independently of his continued ownership of the contract and are not essential to a continued enforcement of the contract.
If, however, an accrued cause of action cannot be asserted apart from the contract out of which it arises or is essential to a complete and adequate enforcement of the contract, it passes with an assignment of the contract as an incident thereof. (Citations omitted.) Id. at 833, 112 P.2d 598.

{¶ 35} The National Reserve court then examined the language of the trust indenture at issue and determined that the accrued breach-of-contract claims were transferred with the participation certificate to the plaintiff-assignee. The court offered the following reasoning:

The trust indenture, upon which the present action is based, specifically provides that ownership of a certificate secured by the agreement is a condition precedent to the maintenance of a cause of action for violation of a covenant contained therein. The assertion of the cause of action is thus dependent upon ownership of the certificate. All right, title and interest in such certificate has been assigned to plaintiff. Only by virtue of its transfer to the plaintiff could the cause of action continue to exist. Id. at 833-834, 112 P.2d 598.

{¶ 36} Interestingly, in the case relied upon by the majority, R.A. Mackie & Co., L.P. v. Petrocorp Inc. , 329 F.Supp.2d 477 (S.D.N.Y.2004), although the court found that the breach-of-contract claim was a "right in the security" that automatically transferred with the purchase of the warrant under Texas's version of U.C.C. 8-302(a) by distinguishing the court's prior decision in Consolidated Edison, Inc. v. Northeast Utilities , 318 F.Supp.2d 181 (S.D.N.Y.2004), the court went on to recognize that the language of the specific warranty agreement at issue was also "significant." R.A. Mackie at 507. The court stated:

Significantly, the Warrant Agreement provides that "all covenants, conditions, stipulations, promises, and agreements in this Agreement contained shall be for the sole and exclusive benefit of the parties hereto and their successor and the holders of the Warrant Certificates." That provision also limits to the "parties hereto and the holders of the Warrant Certificates any right, remedy, or claim under or by reason of this Agreement * * *." The Warrant Agreement thus authorizes holders of the Warrants, without limitation, to maintain a legal proceeding for breach of that Agreement. (Citations omitted.) Id. at 507-508.

{¶ 37} The R.A. Mackie court then concluded that "[n]either the Warrant Agreement itself nor § 8.302 of the Texas UCC prevents the plaintiffs from bringing claims against PetroCorp as successor-in-interest to Southern Mineral based on Warrants that were purchased after the date of the breach of the Warrant Agreement." Id. at 508.

{¶ 38} I believe R.A. Mackie could have framed the issue better: rather than asking whether a contract "prevents" an assignee from asserting an accrued cause of action, the court should have asked whether the accrued cause of action "can be asserted by the assignor independently of his continued ownership of the contract and [is] not essential to a continued enforcement of the contract." Natl. Res. , 17 Cal.2d at 833, 112 P.2d 598 ; 17 Mile , 8th Dist. Cuyahoga No. 99358, 2013-Ohio-3005, 2013 WL 3583616, at ¶ 13. If R.A. Mackie had applied that standard, I believe it would have reached the same result because only "holders of the Warrant Certificates" had a right to make claims under the agreement-thus, a claim for breach of the Warrant Agreement could not be asserted by the assignor independently of his continued ownership of the contract.

{¶ 39} In this case, the Trust Indenture contains language that is analogous to the contracts in both National Reserve and R.A. Mackie and, in my view, demonstrates that the breach-of-contract claims against appellee were transferred with the bonds.

{¶ 40} The general provisions for the bonds at issue state that they "are issued under a Trust Indenture dated as of July 1, 1998, between the Issuer and the Trustee (the 'Indenture')," and further provide that

[t]he Holder of this Bond shall have no right to enforce the provisions of the Indenture or to institute action to enforce the covenants therein, or to take any action with respect to any event of default thereunder, or to institute, appear in or defend any suit or other proceeding with respect thereto, except as provided in the Indenture. " (Emphasis added.)

Thus, we must look to the Trust Indenture to determine what "rights" can be transferred to bondholders under 1308.16(A).

{¶ 41} Section 11.03 of the Trust Indenture provides the following:

Limitation of Rights. With the exception of rights herein expressly conferred, nothing expressed or mentioned in or to be implied from this Indenture or the Bonds is intended or shall be construed to give to any person other than the parties hereto, the Lessee, and the Bondholders any legal or equitable right, remedy or claim under or in respect to this Indenture or any covenants, conditions and provisions herein contained; this Indenture and all of the covenants, conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of the parties hereto, the Lessee and the Bondholders as herein provided. (Emphasis added.)

{¶ 42} The Trust Indenture defines "Bondholder" to mean "as to any Bond, the person in whose name such Bond is registered on the Bond Register." Thus, similar to the securities at issue in National Reserve and R.A. Mackie , actual ownership of the bond "is a condition precedent to the maintenance of a cause of action" and "[o]nly by virtue of its transfer to the plaintiff could the cause of action continue to exist." Natl. Res. , 17 Cal.2d at 833-834, 112 P.2d 598. Any breach-of-contract claims under the trust indenture therefore transfer with the bond to subsequent bondholders because such claims cannot be asserted apart from the contract out of which they arise and are essential to the complete enforcement of the Trust Indenture.

{¶ 43} For these reasons, I concur with the majority's conclusion that the judgment of the Lucas County Court of Common Pleas should be reversed and the matter remanded to the trial court to consider the remaining Civ.R. 23 requirements for class certification.


source: Caselaw Access Project

license: Public Domain

text:
    Charles A. WHITE, et al., Plaintiffs-Appellants/Cross-Appellees v. Omprakash BHATT, MD., et al., Defendants-Appellees
    Gubert L. Tan, M.D., Defendant-Appellee/Cross-Appellant
    No. 17CA30
    Court of Appeals of Ohio, Fifth District, Richland County.
    DATE OF JUDGMENT ENTRY: December 22, 2017
   MICHAEL L. INSCORE, Inscore Law Offices, LLC, 3 North Main Street, Ste. 703, Mansfield, Ohio 44902-1740, For Plaintiffs/Appellants Charles A. White and Christina M. Christner.

JEANNE M. MULLIN, TAYLOR C. KNIGHT, Reminger Co., L.P.A., 237 West Washington Row, Second Floor, Sandusky, Ohio 44870, For Defendant/Appellee Gubert Tan, M.D.

KEVIN M. NORCHI, BRENDAN M. RICHARD, NORCHI FORBES, Commerce Park IV, 23240 Chagrin Boulevard, Suite 210, Cleveland, Ohio 44122, For Defendant Omprakash Bhatt, M.D.

KENNETH R. BEDDOW, Bonezzi, Switzer, Polito & Hupp Co., L.P.A., 24 West Third Street, Suite 204, Mansfield Ohio 44902-1244, For Defendants/Appellees Medcentral Health System and OhioHealth Corporation.

JUDGES: Hon. Patricia A. Delaney, P.J., Hon. William B. Hoffman, J., Hon. John W. Wise, J.

OPINION

Hoffman, J.

{¶ 1} Plaintiffs-appellants/cross-appellees Charles A. White, et al. appeal the March 7, 2017 Judgment Entry entered by the Richland County Court of Common Pleas, which granted summary judgment in favor of defendants-appellees Omprakash Bhatt, M.D., et al. Defendant-appellee/cross-appellant Gubert L. Tan, M.D. appeals the same judgment entry, which failed to address his argument he was immune from liability pursuant to R.C. 2108.40.

STATEMENT OF THE FACTS AND CASE

{¶ 2} On March 13, 2013, Cheri White ("Decedent"), Appellants' mother, was transported to Appellee MedCentral Health System's Mansfield Hospital in an unconscious state. Dr. Bhatt admitted Decedent to the hospital. Decedent was placed on a ventilator in the intensive care unit.

{¶ 3} Appellant Charles White arrived at the hospital on March 13, 2013, and proceeded to Decedent's room in the intensive care unit. As Appellant Charles White approached the opened door to Decedent's room, he observed nurses or other hospital staff at his mother's bedside. The nurses had raised Decedent's leg and pulled up her hospital gown, exposing her genital area. Appellant Charles White questioned the nurses, who explained they were adjusting Decedent's urinary catheter. Appellant Charles White asked the nurses to respect Decedent's privacy by closing the room door when they were administering nursing care.

{¶ 4} Dr. Bhatt suspected Decedent was brain dead when he admitted her. To confirm his suspicions, Dr. Bhatt ordered a neurological consultation of Decedent by Appellee Dr. Gubert Tan.

{¶ 5} The undisputed evidence presented in this case established the standard of care for determination of brain death. A neurologist must conduct testing to determine the presence or absence of brain stem reflexes to confirm whether a patient is brain dead. The reflex testing includes evaluating a patient's eyes to determine if her gaze is fixed, establishing whether the patient has a blink reflex, and examining the reactivity of the patient's pupils. Reflex testing requires the neurologist to manually open the patient's eyes, using his fingers. The neurologist also tests whether the patient is responsive to stimulus, which is done by applying noxious stimuli to the patient's face, hands, and soles of the feet. In addition, the neurologist examines muscle stretch reflexes, especially facial and jaw reflexes, by applying pressure over the patient's mastoid and sternum, and by moving the patient's extremities. If the results of the brain stem reflex testing are negative for brain stem response, the neurologist then conducts an apnea test before a final determination of brain death is confirmed.

{¶ 6} To perform an apnea test, the patient is removed from artificial ventilation. The patient is observed for spontaneous respiration efforts for five to ten minutes. If respiratory efforts are observed, the patient cannot be declared brain dead. If no spontaneous respiratory efforts are observed and if all other criteria are met, the patient is declared brain dead. In order for the neurologist to observe even the slightest effort at spontaneous respiration, the patient's neck, chest, and upper abdomen must be unclothed. The neurologist will have the patient's family members present during the examination in order for them to understand the patient's condition and to assist them in making the decision as to whether to cease life-sustaining medical treatment.

{¶ 7} On March 14, 2013, Dr. Tan spoke to Appellant Charles White and advised him the ventilator was sustaining Decedent's breathing and he was unable to detect any signs of brain activity. Dr. Tan conducted the reflex tests in the presence of Appellant Charles White, who perceived the tests as "pinching and prodding" Decedent. Dr. Tan opened Decedent's eyes, and stated, "You can see how dead your mother is, and there's no brain activity." Because the reflex test and other medical tests indicated Decedent was brain dead, Dr. Tan informed Appellant Charles White he needed to perform an apnea test. Dr. Tan explained the steps involved in determining brain death and the reasons for each step, including what would occur during the apnea test.

{¶ 8} Appellant Christina Christner, Decedent's daughter, and her family arrived from Virginia on the morning of March 15, 2013. During the afternoon, Appellant Charles White received a telephone call summoning him to the hospital. He was aware medical personal intended to conduct a test to determine if Decedent could breathe without artificial ventilation.

{¶ 9} Dr. Tan, with Dr. Bhatt's assistance, performed the apnea test on March 15, 2013, in the presence of Appellants and other family members. During the apnea test, Decedent's hospital gown was pulled down to reveal her chest, neck, and upper abdominal area, which allowed Drs. Tan and Bhatt and other medical personal to have an unobstructed view of Decedent's diaphragm and other respiratory muscles to assess the presence or absence of spontaneous respirations. Appellant Charles White claimed Decedent was fully disrobed while the test was performed. Appellant Charles White was deeply disturbed by seeing Decedent unclothed and left the room. Two other male relatives also exited the room during the testing. Decedent was pronounced dead on March 15, 2013.

{¶ 10} Appellant Charles White took three weeks of bereavement leave following Decedent's death, then returned to work full-time. Approximately one year later, Appellant Charles White engaged in one counseling session. He did not undergo any kind of mental health or bereavement counseling prior to the one counseling session. Appellant Charles White did not seek treatment for anxiety or depression, and was not prescribed any medication for anxiety or depression. He did not take any additional time off from work following his bereavement leave. Appellant Christina Christner was taking anti-depressants prior to Decedent's death, and her physician had recommended she undergo therapy. Appellant Christina Christner asserted her pre-existing depression and anxiety worsened following Decedent's death.

{¶ 11} Appellants filed the instant action, claiming they suffered severe emotional distress caused by witnessing Appellees' mistreatment of Decedent while providing medical care to Decedent. Dr. Tan filed a motion for summary judgment on January 12, 2016. MedCentral and Dr. Bhatt filed motions for summary judgment on January 17, 2016.

{¶ 12} Via Judgment Entry filed March 7, 2017, the trial court granted summary judgment in favor of Appellees.

{¶ 13} It is from this judgment entry Appellants appeal, assigning as error:

1. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING THE MOTIONS FOR SUMMARY JUDGMENT OF APPELLEES HOSPITAL AND TAN ON APPELLANTS' CLAIMS FOR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (OR, IN THE ALTERNATIVE, ABUSE OF AN UNCONSCIOUS OR DECEASED PERSON). (JUDGMENT ENTRY [MARCH 7, 2017] GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT)
2. THE TRIAL COURT ERRED AS A MATTER OF LAW IN GRANTING THE MOTIONS FOR SUMMARY JUDGMENT OF APPELLEES HOSPITAL AND TAN ON APPELLANTS' CLAIMS FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. (JUDGMENT ENTRY [MARCH 7, 2017] GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT)
3. THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO RULE ON APPELLANTS' MOTION TO COMPEL DISCOVERY, THEREBY IMPLICITLY OVERRULING THE MOTION. (JUDGMENT ENTRY [MARCH 7, 2017] GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT)

{¶ 14} Dr. Tan cross-appeals, assigning as error:

1. THE TRIAL COURT ERRED IN FAILING TO ADDRESS THE STATUTORY IMMUNITY FOR DETERMINATION OF BRAIN DEATH PURSUANT TO R.C. 2108.40, WHICH CONFERS IMMUNITY ON DR. TAN FOR ANY/ALL ACTIONS DURING HIS DETERMINATION OF THE BRAIN DEATH OF CHERI WHITE.

SUMMARY JUDGMENT STANDARD OF REVIEW

{¶ 15} Summary judgment proceedings present the appellate court with the unique opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212. As such, this Court reviews an award of summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241.

{¶ 16} Civ.R. 56 provides summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remain to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come to but one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 364 N.E.2d 267.

{¶ 17} 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. 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.

APPEAL

I

{¶ 18} In their first assignment of error, Appellants contend the trial court erred in granting summary judgment in favor of Appellees on their claim of negligent infliction of emotional distress or, in the alternative, abuse of an unconscious or deceased person.

{¶ 19} To prevail on a claim for negligent infliction of emotional distress arising out of witnessing trauma to another, a plaintiff must prove: "(1) the plaintiff was a bystander, (2) the plaintiff reasonably appreciated the peril that took place, whether or not the victim suffered actual physical harm, and (3) the plaintiff suffered serious emotional distress as a result of this cognizance." Walker v. Firelands Community Hosp., 170 Ohio App.3d 785, 2007-Ohio-871, 869 N.E.2d 66, ¶ 59 (6th Dist.), citing Paugh v. Hanks, 6 Ohio St.3d 72, 80, 451 N.E.2d 759 (1983).

{¶ 20} As the Ohio Supreme Court has stressed on various occasions, "[t]he only logical definition of 'bystander' is 'one who is at the scene.' 'Bystander' does not include a person who was nowhere near the accident scene and had no sensory perception of the events surrounding the accident." Burris v. Grange Mut. Cos. (1989), 46 Ohio St.3d 84, 92-93, 545 N.E.2d 83, overruled on other grounds, Savoie v. Grange Mut. Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809. See, also, Heiner v. Moretuzzo (1995), 73 Ohio St.3d 80, 85-86, 652 N.E.2d 664. A bystander's emotional injuries must be both serious and "reasonably foreseeable" to be compensable. Paugh at paragraph three of the syllabus. In determining whether the injuries are "reasonably foreseeable," the following factors are considered: "(1) whether the plaintiff was located near the scene of the accident, as contrasted with one who was a distance away; (2) whether the shock resulted from a direct emotional impact upon the plaintiff from sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the plaintiff and victim (if any) were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." Id. at paragraph three b. of the syllabus.

{¶ 21} The trial court found Appellants failed to establish all of the elements of their claim for negligent infliction of emotional distress. We find Appellant Charles White was a bystander with respect to the incident during which he observed MedCentral's nurses adjusting Decedent's urinary catheter. However, we question whether Appellants were "bystanders" with respect to their observation of Drs. Tan and Bhatt performing the apnea test. Dr. Tan explained to Appellants the steps involved in making the ultimate determination of brain death, including what would occur during the apnea test. Appellants chose to watch as Drs. Tan and Bhatt performed the tests. They were not merely bystanders, but rather intentional observers. The apnea test was not an accidental event to which Appellants observed merely by happenstance. Assuming, arguendo, Appellants presented sufficient evidence to establish the first two elements of this claim, we find Appellants failed to establish a genuine issue of material fact exists regarding the final element, i.e., whether they suffered serious emotional distress.

{¶ 22} Serious emotional distress describes emotional injury which is both severe and debilitating. Id. Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case." Id. at paragraph 3a of the syllabus; Banford v. Aldrich Chem. Co. , 126 Ohio St.3d 210, 2010-Ohio-2470, 932 N.E.2d 313, ¶ 29. "A non-exhaustive litany of some examples of serious emotional distress should include traumatically induced neurosis, psychosis, chronic depression, or phobia." Paugh , supra, at 78, 451 N.E.2d 759 (Citation omitted).

{¶ 23} With respect to Appellant Charles White, the evidence reveals he took three weeks of bereavement leave following Decedent's death. Thereafter, he returned to work full-time. He did not take any additional time off from work following his bereavement leave. He testified he is able to sufficiently perform his job duties as a deputy sheriff. Approximately one year after Decedent's death, Appellant Charles White sought counseling on one occasion. He did not continue counseling as he disliked talking about Decedent's hospitalization. He did not undergo any kind of mental health or bereavement counseling other than the single counseling session. Appellant Charles White did not seek treatment for anxiety or depression, and was not prescribed any medication for anxiety or depression. He is able to maintain a good relationship with his family and is engaged with his family.

{¶ 24} With respect to Appellant Christina Christner, the evidence reveals she was taking anti-depressants prior to Decedent's death, and her physician had recommended she undergo therapy. She asserted her pre-existing depression and anxiety worsened following Decedent's death. Her physician prescribed a new medication for her and increased the dosage of her established medication.

{¶ 25} A plaintiff must provide some "guarantee of genuineness" of the seriousness of the emotional distress suffered to survive summary judgment. Buckman-Peirson v. Brannon (2004), 159 Ohio App.3d 12, 822 N.E.2d 830, 837 (Internal citation and quotation omitted). "[E]xpert medical testimony can assist the judicial process in determining whether the emotional injury is indeed, serious." Paugh, supra, at 80, 451 N.E.2d 759. However, "a plaintiff may offer the testimony of lay witnesses acquainted with the plaintiff to show significant changes that they have observed in the emotional or habitual makeup of the plaintiff." Buckman-Peirson , supra, at 24, 822 N.E.2d 830.

{¶ 26} The severity of a plaintiff's alleged emotional distress may be determined by the court as a matter of law. Paugh, supra, at 78, 451 N.E.2d 759. "The intensity and the duration of the distress are factors to be considered in determining its severity. * * * It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed." Cruz v. English Nanny & Governess School Inc. , 2017-Ohio-4176, 92 N.E.3d 143 (8th Dist.). (Emphasis added in original), quoting Comment j to Restatement of the Law 2d, Torts 77, Section 46 (1965).

{¶ 27} Appellants maintain the trial court incorrectly concluded their emotional distress was not "serious", and was not distinct from the normal emotional distress an individual experiences as the result of the death of a parent. Appellants add, although the trial court acknowledged expert medical testimony was not required to establish the seriousness and the cause of their emotional distress, it relied heavily on the lack of such testimony in granting summary judgment to Appellees.

{¶ 28} Appellants are correct in their assertion expert testimony is not normally required to establish the seriousness of emotional distress. However, expert testimony is necessary to establish a "substantial causal relationship" between the cause alleged, as distinguished from other possible causes, and the claimed emotional injury suffered by the plaintiff. Powell v. Grant Med. Ctr. (2002), 148 Ohio App.3d 1, 8, 771 N.E.2d 874 (Citation omitted). In the instant action, the alleged cause of Appellants' emotional distress was inextricably related to Decedent's death. Expert testimony was necessary to establish a substantial causal relationship between Appellees' treatment of Decedent, as distinguished from the death of Decedent, and the serious emotional distress Appellants purportedly suffered.

{¶ 29} We find Appellants failed to present competent evidence to establish they suffered serious emotional injury specifically caused by Appellees' treatment of Decedent. Accordingly, they are unable to sustain their claim of negligent infliction of emotional distress against Appellees. See, e.g. Plikerd v. Mongeluzzo (1992), 73 Ohio App.3d 115, 126, 596 N.E.2d 601 (evidence of serious emotional distress was insufficient where plaintiff "neither sought or received any medical, psychiatric, or psychological treatment, missed any work or incurred any expense for treatment of emotional distress"); Paige v. Youngstown Bd. of Edn. (Dec. 23, 1994), 7th Dist. Mahoning No. 93 C.A. 212, 1994 WL 718839 (an emotional injury will not be found to be severe and debilitating where plaintiff fails to show he sought medical or psychological help or was unable to work or otherwise function in his daily life).

{¶ 30} Within this assignment of error, Appellants alternatively argue the trial court erred in granting summary judgment in favor of Appellees on their claim of abuse of an unconscious or deceased person. The trial court found Ohio law does not recognize such a cause of action. Appellants contend such cause of action is a special subset of negligent infliction of emotional distress, and must be evaluated in that context. Appellants rely on Carney v. Knollwood Cemetery Ass'n (1986), 33 Ohio App.3d 31, 514 N.E.2d 430, in support of their position.

{¶ 31} In Carney, the Eighth District Court of Appeals acknowledged a "cause of action for mishandling of a dead body as a sub-species of the tort of infliction of serious emotional distress." Id. at 37, 514 N.E.2d 430. In that case, a cemetery supervisor instructed cemetery workers to continue digging a new grave after they hit an old wooden vault. Id. at 31, 514 N.E.2d 430. The workers proceeded to throw the vault and the remains, which included the decomposed body of plaintiffs' long-deceased grandmother, into a refuse heap at the rear of the cemetery. Id. Under these circumstances, the Eighth District concluded the independent tort of mishandling a dead body supported the inference the plaintiffs' emotional injuries were foreseeable. Id. at 34, 514 N.E.2d 430. The Carney Court also found a plaintiff was not required to observe the mishandling to establish his claim, thereby removing the bystander element. Id. We find there is a significant factual difference between the mishandling of a corpse by grave diggers and the performance of medical procedures to determine if a patient is, in fact, deceased. The plaintiffs in Carney were still required to establish they suffered serious emotional distress.

{¶ 32} For the reasons we found Appellants are unable to establish a claim of negligent infliction of emotional distress, supra, we find Appellants are, likewise, unable to establish a claim of abuse of an unconscious or deceased person.

{¶ 33} Based upon the foregoing, we find the trial court did not err in granting summary judgment in favor of Appellees on Appellants' claims for negligent infliction of emotional distress, and abuse of an unconscious or deceased person.

{¶ 34} Appellants' first assignment of error is overruled.

II

{¶ 35} In their second assignment of error, Appellants assert the trial court erred in granting summary judgment in favor of Appellees on their claim for intentional infliction of emotional distress.

{¶ 36} A successful intentional infliction of emotional distress claim requires a plaintiff to prove: (1) the defendant intentionally or recklessly caused the plaintiff serious emotional distress; (2) the defendant's conduct was "extreme and outrageous"; and (3) the defendant's conduct proximately caused the plaintiff serious emotional distress. Phung v. Waste Mgmt., Inc. (1994), 71 Ohio St.3d 408, 410, 644 N.E.2d 286 ; Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 453 N.E.2d 666, syllabus.

{¶ 37} The trial court found Appellants' claim for intentional infliction of emotional distress failed as a matter of law because Appellees' conduct was not "so outrageous that [it] would cause an average member of the community to feel resentment against" Appellees.

{¶ 38} Even if we were to find the trial court erred in finding Appellees' conduct did not rise to a level of "extreme or outrageous", [which we do not] we would further find, as we did supra, Appellants are unable to establish "the mental anguish suffered by [them] is serious and of a nature that no reasonable person could be expected to endure it." See, Burks v. Torbert, 8th Dist. Cuyahoga No. 91059, 2009-Ohio-486, 2009 WL 280405, ¶ 19. Accordingly, we find the trial court did not err in granting summary judgment in favor of Appellees on Appellants' claim for intentional infliction of emotional distress.

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

III

{¶ 40} In their final assignment of error, Appellants maintain the trial court abused its discretion in failing to rule on their motion to compel discovery, thereby implicitly overruling the motion. Appellants submit the trial court's failure to rule on their motion to compel obstructed their ability to defend against the motions for summary judgment.

{¶ 41} We review a trial court's handling of discovery matters under an abuse of discretion standard. Restivo v. Fifth Third Bank (1996), 113 Ohio App.3d 516, 521, 681 N.E.2d 484, 487.

{¶ 42} Appellants could have filed a motion to delay consideration of summary judgment, pending discovery pursuant to Civ.R. 56(F). A party who fails to seek relief under Civ.R. 56(F) in the trial court does not preserve his rights thereto for purposes of appeal. Taylor v. Franklin Blvd. Nursing Home, Inc. (1996), 112 Ohio App.3d 27, 30, 677 N.E.2d 1212, 1214.

{¶ 43} Appellants did not file a Civ.R. 56(F) motion and affidavit below seeking to delay the trial court's ruling on Appellees' motions for summary judgment pending resolution of the discovery issues. Because they never invoked Civ.R. 56(F), the trial court was permitted to resolve the summary judgment motions without explicitly ruling on the motion to compel.

{¶ 44} Accordingly, we find the trial court did not err in failing to rule on Appellants' motion to compel.

{¶ 45} Appellants' third assignment of error is overruled.

CROSS-APPEAL

II

{¶ 46} In his sole assignment of error on cross-appeal, Dr. Tan argues the trial court erred in failing to address the statutory immunity for determination of brain death pursuant to R.C. 2108.40.

{¶ 47} Because the trial court found an alternate, independent ground for granting summary judgment in favor of Appellees, we find any analysis as to whether the trial court erred in failing to address Dr. Tan's R.C. 2108.40 argument to be unnecessary under the two issue rule.

{¶ 48} Dr. Tan's sole assignment of error on cross-appeal is overruled as moot.

{¶ 49} The judgment of the Richland County Court of Common Pleas is affirmed.

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

      Dr. Bhatt, although a named defendant, is not a party to this appeal.


author: DONOVAN, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Watson BRADLEY, III, Defendant-Appellant
    NO. 027509
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on December 22, 2017
    ALICE B. PETERS, Atty. Reg. No. 0093945, Assistant Prosecuting Attorney, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee
    TRAVIS KANE, Atty. Reg. No. 0088191, 1015 E. Centerville Station Road, Centerville, Ohio 45459, Attorney for Defendant-Appellant
   DONOVAN, J.

{¶ 1} Defendant-appellant Watson F. Bradley appeals his conviction and sentence for one count of having weapons while under disability (prior drug conviction), in violation of R.C. 2923.13(A)(3), a felony of the third degree; one count of possession of cocaine (less than five grams), in violation of R.C. 2925.11(A), a felony of the fifth degree; and one count of possession of heroin (one gram but less than five grams), in violation of R.C. 2925.11(A), a felony of the fourth degree. Bradley filed a timely notice of appeal with this Court on March 22, 2017.

{¶ 2} The incident which forms the basis for the instant appeal occurred on May 27, 2016, when Dayton Police Officer Cody Hartings was dispatched to a residence located at 50 Glenwood Drive in Dayton, Ohio, in order to investigate an aggravated menacing complaint. Upon arriving at the residence in question, Officer Hartings spoke with Eric Potter, who indicated that his brother-in-law, Bradley, had pointed a handgun at him during a confrontation between the two men. Potter informed Officer Hartings that Bradley was currently in the upstairs bedroom and that the handgun would most likely be located in the closet of that room. Potter also informed Officer Hartings that he was the owner of the house and lived there with his wife, whom he did not identify by name.

{¶ 3} At this point, Officer Hartings, accompanied by Officer Evans, went upstairs and entered the bedroom identified by Potter. Inside the bedroom, the officers observed Bradley sitting on a bed. Officer Hartings asked Bradley whether he and Potter had gotten into a fight earlier. Bradley responded in the affirmative. Officer Hartings testified that Bradley was calm and cooperative at all times. Officer Hartings then asked Bradley if all of the property in the bedroom belonged to him. Officer Hartings also asked for Bradley's consent to search the room for the handgun that Potter described. Bradley informed the officers that all of the property in the room was indeed his, but he did not live at the house, so he could not give them consent to search the room.

{¶ 4} Officer Evans remained in the bedroom with Bradley while Officer Hartings went back downstairs to speak with Potter. Believing him to be the owner of the residence, Officer Hartings asked Potter if he would sign a consent to search form. Potter signed the consent to search form. Thereafter, Officers Hartings and Evans searched the bedroom where Bradley was located and discovered a handgun, two loaded magazines, various drug paraphernalia, and what was later identified as heroin and crack cocaine. Whereupon, Bradley was handcuffed and arrested.

{¶ 5} On May 29, 2016, Bradley was interviewed by Dayton Police Detective Rod Roberts. Detective Roberts informed Bradley of his Miranda rights and asked him to sign a pre-interview form. Bradley signed the pre-interview form and agreed to speak to Detective Roberts without an attorney. Bradley informed Detective Roberts that he actually resided at 809 Ferndale Avenue in Dayton, Ohio. Bradley also stated that he did not live at 50 Glenwood Avenue where he was arrested, but only "stayed there from to time." Bradley further stated that none of the property discovered in the bedroom by Officer Hartings belonged to him.

{¶ 6} Thereafter on July 29, 2016, Bradley was indicted for one count of having a weapon while under disability (prior drug conviction). At his arraignment on August 9, 2016, Bradley stood mute, and the trial court entered a plea of not guilty on his behalf. Bradley filed a motion to suppress all of the physical evidence on August 25, 2016. A hearing was held on said motion on October 6, 2016. At the hearing, Bradley's sister, Danisha Turner, testified that she was the only legal occupant of the residence located at 50 Glenwood Avenue when her brother was arrested on May 27, 2016. Turner testified that she and Potter had never been married and that he was only her ex-boyfriend. Additionally, Turner testified that while she and Potter were dating, he never lived with her, but only stayed at her house occasionally.

{¶ 7} With respect to her brother, Turner testified that before he was arrested on May 27, 2016, Bradley had been staying at her house for approximately four to five days. Turner testified that Bradley mainly lived with his girlfriend, but she permitted him to keep some of his personal belongings at her house in the upstairs bedroom. Turner testified that she also permitted other relatives and friends to stay in the upstairs bedroom from time to time. Turner was not present at 50 Glenwood Avenue when Bradley was arrested, and she testified that she did not authorize Potter to give consent to search her house.

{¶ 8} On November 8, 2016, the trial court issued a decision overruling Bradley's motion to suppress in its entirety. On December 9, 2016, a second indictment was issued against Bradley, charging him with possession of heroin and possession of cocaine. On December 15, 2016, Bradley filed a second motion to suppress in order to address the new charges. The second motion to suppress contained the same arguments as did Bradley's first suppression motion. On February 6, 2017, the trial court overruled Bradley's second motion to suppress.

{¶ 9} On February 9, 2017, Bradley pled no contest to one count of having a weapon while under disability (prior drug conviction), one count of possession of cocaine, and one count of possession of heroin. The trial court accepted Bradley's no contest pleas, found him guilty on all counts, and ordered the adult probation department to prepare a pre-sentence investigation report (PSI). On March 9, 2017, the trial court sentenced Bradley to community control sanctions not to exceed five years.

{¶ 10} It is from this judgment that Bradley now appeals.

{¶ 11} Bradley's sole assignment of error is as follows:

{¶ 12} "THE TRIAL COURT ERRED BY RULING THE WARRANTLESS SEARCH OF APPELLANT'S BEDROOM WAS A VALID SEARCH BASED ON CONSENT BEING PROVIDED TO THE SEARCHING OFFICERS."

{¶ 13} In his sole assignment, Bradley contends that the trial court erred when it overruled his motion to suppress because Officer Hartings was aware that Bradley was living in the upstairs bedroom at his sister's house, and he did not consent to a search of the room. Bradley further argues that under the totality of the circumstances, no reasonable officer would have believed that Potter had the authority to consent to the search of the upstairs bedroom.

{¶ 14} When ruling on a motion to suppress, "the trial court assumes the role of trier of facts and is in the best position to resolve questions of fact and evaluate the credibility of witnesses." State v. Hopfer, 112 Ohio App.3d 521, 548, 679 N.E.2d 321 (2d Dist.1996), quoting State v. Venham, 96 Ohio App.3d 649, 653, 645 N.E.2d 831 (4th Dist.1994). In reviewing the trial court's decision on a motion to suppress, an appellate court must accept the trial court's findings of fact as true, if they are supported by competent, credible evidence. State v. Dudley, 2d Dist. Montgomery No. 24904, 2012-Ohio-960, 2012 WL 762305, ¶ 6. The appellate court must then determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard. Id.

{¶ 15} The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution protect individuals from unreasonable searches and seizures.

Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; State v. Pressley , 2d Dist. Montgomery No. 24852, 2012-Ohio-4083, 2012 WL 3871421, ¶ 18. "Under applicable legal standards, the State has the burden of showing the validity of a warrantless search, because warrantless searches are 'per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well delineated exceptions.' " State v. Hilton , 2d Dist. Champaign No. 08-CA-18, 2009-Ohio-5744, 2009 WL 3528537, ¶ 21-22, citing Xenia v. Wallace , 37 Ohio St.3d 216, 218, 524 N.E.2d 889 (1988).

{¶ 16} One of the specifically established exceptions to the warrant requirement is a search that is conducted with consent. Schneckloth v. Bustamonte , 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) ; State v. Posey , 40 Ohio St.3d 420, 427, 534 N.E.2d 61 (1988). Consent to search can be "obtained, either from the individual whose property is searched, or from a third party who possesses common authority over the premises." Illinois v. Rodriguez , 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). "The authority which justifies third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched." State v. Gordnoshnka , 8th Dist. Cuyahoga No. 86319, 2006-Ohio-563, 2006 WL 302354, ¶ 11, citing United States v. Matlock , 415 U.S. 164, 172, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

{¶ 17} The State is required to establish, by clear and convincing evidence, that consent to the search was freely and voluntarily given by one with authority to do so. Posey at 427, 534 N.E.2d 61 ; State v. Connors-Camp , 2d Dist. Montgomery No. 20850, 2006-Ohio-409, 2006 WL 235046, ¶ 29.

{¶ 18} It is not necessary that the consenting third party have actual authority over the premises. State v. Portman, 2d Dist. Clark No. 2013-CA-68, 2014-Ohio-4343, 2014 WL 4823868, ¶ 13, citing United States v. Ayoub, 498 F.3d 532, 537 (6th Cir.2007). Even if an officer erroneously believes that a third-party is authorized to give consent, using an objective standard, third-party consent is valid if an officer looking at the then-available facts could reasonably conclude that the third-party had apparent authority to consent. Rodriguez at 186, 110 S.Ct. 2793. An officer's belief is not reasonable if the surrounding circumstances would lead a reasonable person to doubt the authority of the third party. Rodriguez at 188, 110 S.Ct. 2793.

{¶ 19} Based on the evidence presented at the suppression hearing, we conclude that the facts available to Officer Hartings were sufficient to warrant a reasonable belief that Potter had apparent authority to consent to a search of the upstairs bedroom where Bradley was located. As previously stated, Officer Hartings initially made contact with Potter in the early afternoon on May 27, 2016, at the house located at 50 Glenwood Avenue. Potter identified himself as the owner of the home, stating that he lived there with his wife, whom he did not name and was not present. Potter informed Officer Hartings that Bradley was in the upstairs bedroom. Potter further stated that the gun Bradley pointed at him would probably be in the closet in the same upstairs bedroom.

{¶ 20} After making contact with Bradley in the upstairs bedroom, Officer Hartings asked him if the property in the room belonged to him. Bradley responded in the affirmative. Upon being asked for consent to search the room, Bradley informed Officer Hartings that he did not live at the house and therefore, could not give the officers consent to search.

{¶ 21} Believing that Potter was the owner of the home, Officer Hartings went downstairs and asked him to sign a consent to search form. Potter willingly signed the form. Thereafter, the officers searched the upstairs bedroom, finding the handgun, ammunition, and other contraband.

{¶ 22} Upon review, we agree with the trial court and find that Officer Hartings had an objectively reasonable belief that Potter, the consenting party, had authority to give the officers consent to search the upstairs bedroom where Bradley was located. See State v. Portman , 2d Dist. Clark No. 2013-CA-68, 2014-Ohio-4343, 2014 WL 4823868 (upholding consent to search the defendant's vehicle and business based on an escort/rape victim's consent because the victim gave police the keys and the police reasonably believed that she was the defendant's wife); see also Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (holding that officers had a reasonable belief that the woman who referred to the residence as "our" apartment and produced a key which allowed the police to enter the apartment, had authority to consent to a search). When queried by Officer Hartings, Bradley stated that he did not live at the house and therefore, did not have authority to provide the officers with consent to search the upstairs bedroom. This is a factual finding made by the trial court which we cannot disturb. Notably, Bradley did not assert that he was an overnight guest. In addition to Bradley's statements disavowing any authority to consent to a search, Potter informed the officers that he owned the house and was willing to give consent.

{¶ 23} Because the trial court reasonably concluded that Bradley had no authority to give or deny consent to search and the officers reasonably believed that Potter had the authority to give such consent, the officers' warrantless search was permissible. Bradley's constitutional rights were not violated by the search conducted pursuant to Potter's consent, and he was not entitled to the suppression of the evidence obtained as a result of the search.

{¶ 24} Bradley's sole assignment of error is overruled.

{¶ 25} Bradley's sole assignment of error having been overruled, the judgment of the trial court is affirmed.

WELBAUM, J. and TUCKER, J., concur.

      Officer Hartings testified that he arrived at the residence in the early afternoon on May 27, 2016; however, the original complaint had been called in at approximately 12:00 a.m. on the previous morning. The record establishes that officers attempted to investigate the complaint at that time, but no one was at the residence when they arrived.