author: WILLAMOWSKI, J.

text:
    Lisa S. SALMONS, Plaintiff-Appellee, v. Greg K. SALMONS, Defendant-Appellee, and J.P. Morgan Chase Bank, N.A., Third-Party Defendant-Appellant.
    NO. 2-17-20
    Court of Appeals of Ohio, Third District, Auglaize County.
    Date of Decision: April 16, 2018
    Daniel C. Gibson Columbus, for Appellant
    Robert B. Fitzgerald Lima, for Appellee Lisa S. Salmons
   WILLAMOWSKI, J.

{¶ 1} This appeal was brought by Defendant-Appellant J.P. Morgan Chase Bank ("the Bank") from the judgment of the Court of Common Pleas of Auglaize County denying its motion to vacate a judgment. For the reasons set forth below, the judgment is affirmed.

{¶ 2} On December 29, 2014, Plaintiff-Appellee Lisa Salmons ("Lisa") filed a complaint for divorce without children naming Greg Salmons ("Greg") as the defendant. Doc. 1. Greg filed his answer on January 8, 2015. Doc. 25. On February 25, 2015, a continuance of a hearing was granted after Greg's attorney withdrew. Doc. 46. At that hearing, Lisa indicated to the trial court that certain mortgage holders would need to be joined as parties. Id. On May 1, 2015, Lisa filed a motion to join the Bank as a defendant in the case as the successor in interest to the original holder of a mortgage and note on the marital property. Doc. 63. The reason alleged for the necessity of the joinder was that Lisa indicated that she had not signed the note or mortgage and that her signature on the documents had been forged. Id. Lisa also filed a motion for leave to file an amended complaint naming the Bank as a defendant. Doc. 68. The trial court granted the motion on May 27, 2015. Doc. 75. The amended complaint was filed on that same day. Doc. 78. Also on that same day, the trial court granted Lisa's motion to join the Bank and issued an order of joinder. Doc. 79 and 80. On June 2, 2015, Lisa filed a praecipe for service of a summons, the amended complaint and the order of joinder to the Bank. Doc. 83. The clerk of courts then sent a copy of the complaint and the order of joinder to the Bank by certified mail. Doc. 84. The docket is silent as to whether a summons was also sent, as was requested by the praecipe. The return receipt was filed on June 8, 2015, indicating that the Bank received what was sent by the clerk of courts on June 5, 2015. Doc. 85. The Bank did not file an answer or any response and did not object to jurisdiction.

{¶ 3} On September 2, 2015, the clerk of courts sent out a notice of a final hearing on the case. Doc. 87. Notice of the final hearing was sent to the Bank. Id. The first part of the final hearing was held on November 16, 2015. Doc. 93. Although Greg and Lisa were present, the Bank was not present. Id. Lisa rested her case, but the hearing was continued until December 22, 2015, for Greg to present his case. Id. Notice of the second day of the hearing was ordered sent to all parties, including the Bank. Id. On November 19, 2015, Greg filed a motion to call additional witnesses to show that Lisa had knowledge of the note and mortgage on the marital real estate. Doc. 99. Since the record did not show that Lisa had received notice of the motion, the trial court set the motion for hearing prior to the start of the remainder of the case and sent notice of this to Lisa, Greg, and the Bank. Doc. 101.

{¶ 4} The final hearing was concluded on December 22, 2015. Doc. 116. In its orders on divorce, the trial court noted that the Bank had been added as a party to the proceedings, was served, but had chosen not to appear. Id. at 1. The trial court then found that Greg had admitted that he had forged Lisa's signatures and had them notarized by a friend without the consent or knowledge of Lisa about the note and mortgage. Id. at 2. The trial court then awarded the marital residence to Lisa subject to the home equity loan from Superior Credit Union. Id. at 3. However, the trial court ordered that the note and mortgage were not valid as to Lisa. Id. at 2. The trial court also noted that although it had made such a determination, that if Lisa failed to pay the mortgage she would likely be sued for foreclosure and incur legal expenses to defend the suit. Id. at 4. The clerk of courts was ordered to serve a copy of the entry on all parties. Id. The journal entry was filed on March 16, 2016. The clerk of courts did send a copy of the final judgment to the Bank on March 17, 2016. Doc. 117. Greg filed a pro se notice of appeal from this judgment, but the appeal was dismissed for lack of prosecution. Doc. 121 and 128. The Bank was sent a copy of the notice of appeal by the clerk of courts on April 15, 2016. Doc. 123.

{¶ 5} On July 6, 2016, Lisa filed a motion to have Greg's interest in the real estate transferred to her after Greg refused to sign the quit claim deed as ordered by the trial court. Doc. 132. A praecipe was filed requesting service upon Greg in prison and upon the Bank at both its main location in Cleveland and its local branch in Wapakoneta. Doc. 137. Return of service was received by the clerk of courts from the Bank on July 11, 2016, indicating that service was received by both offices of the Bank. Doc. 140 and 141. The trial court granted the motion on August 9, 2016. Doc. 142. A copy of the order was sent to the Bank. Doc. 143.

{¶ 6} On April 12, 2017, the Bank filed a motion to "vacate void default judgment for lack of personal jurisdiction". Doc. 154. The Bank argued that since it had never received a summons, the trial court lacked personal jurisdiction, so the judgment is void. Id. Certificate of service on the motion was sent to counsel for Lisa and Greg. Id. Lisa filed her response to the motion on April 20, 2017. Doc. 164. A hearing was held on the motion on September 11, 2017. Doc. 175. The Bank presented no evidence at the hearing. Doc. 184. The trial court issued its judgment denying the motion of the Bank on the grounds that although the Bank may not have received a summons, it had received the amended complaint, a copy of the order of joinder making it a party to the case, notice of all the hearings, and notice of all the judgment entries. Id. The trial court noted that the judgment challenged by the Bank was not one of default, but occurred after being fully litigated. Id. The trial court distinguished the cases cited by the Bank and found that the Bank had properly been made a party and had actual notice of the proceedings. Id. The court also noted that the Bank had waited over a year to challenge the final judgment of divorce even though it had been served a copy of that judgment in March of 2016 and the Bank admitted that everything was properly sent to its statutory agent. Id. The trial court also noted that even if the Bank had appeared, it would not likely have affected the outcome since Greg admitted that Lisa's name on the loan and mortgage were forged by him without her consent. Id. The Bank filed its notice of appeal from that judgment. Doc. 178. On appeal, the Bank raises the following assignment of error:

The trial court erred in denying [the Bank's] motion to vacate void default judgment for lack of personal jurisdiction.

{¶ 7} In this case, the Bank claims that because it did not receive a summons, the trial court lacked personal jurisdiction. This court notes that the Bank does not claim any other basis for a lack of personal jurisdiction other than the failure to issue the summons. The Bank also does not deny that it received a copy of the complaint, a copy of the order of joinder, notices of hearings, and all orders of the trial court. The only issue raised by the Bank on appeal is whether the trial court may obtain personal jurisdiction if the clerk of court fails to send a summons.

{¶ 8} Pursuant to the Civil Rules of Ohio, the clerk shall issue a summons upon the request of the plaintiff against any defendant. Civ.R. 4(A). "Courts will presume service to be proper in cases where the civil rules are followed unless the defendant rebuts the presumption by sufficient evidence." W2 Properties, L.L.C. v. Haboush , 196 Ohio App.3d 194, 2011-Ohio-4231, ¶ 15, 962 N.E.2d 858 (1st Dist.). "The presumption of proper service by certified mail applies where the record contains a signed return receipt for the envelope delivered that should have contained the summons and complaint." Id. at ¶ 17.

{¶ 9} In this case, the record is clear that Lisa filed a praecipe requesting that the clerk send the Bank a copy of the complaint, a copy of the order of joinder, and a summons. Doc. 83. The record shows that the clerk attempted service by certified mail. Doc. 84. The record shows that a signed receipt was received by the clerk of courts indicating that the Bank received what was sent. Doc. 85. Thus, a presumption of proper service exists by virtue of the Bank's receipt of documents requested through Lisa's praecipe. Doc. 137. The Bank challenged this presumption with an affidavit indicating that after looking through the records, the statutory agent did not find a copy of the summons. Based upon this affidavit, the trial court held a hearing on the issue. At that hearing, the Bank presented no additional evidence to show that service was not proper. Neither the affiant or the clerk of courts was called to testify as to whether a summons was issued. However, the trial court never ruled on whether the service was perfected or not. The trial court instead concluded that the Bank had been made a party to the case in another manner.

{¶ 10} "The purpose of a summons is to give notice to the defendant that claims have been filed against him and that he is required to appear and answer." Chaffin v. Shrontz , 5th Dist. Guernsey No. 13-CA-25, 2014-Ohio-1495, 2014 WL 1390650, ¶ 21.

It is rudimentary that in order to render a valid personal judgment, a court must have personal jurisdiction over the defendant. This may be acquired either by service of process upon the defendant, the voluntary appearance and submission of the defendant or his legal representative, or by certain acts of the defendant or his legal representative which constitute an involuntary submission to the jurisdiction of the court.

Maryhew v. Yova , 11 Ohio St.3d 154, 156, 464 N.E.2d 538 (1984). The trial court in this case determined that the Bank submitted to the jurisdiction of the court by its inaction when it admitted that it had received the complaint and order of joinder and chose not to take any action. The Bank presents several cases in its argument as to why the trial court is incorrect. Upon review of the case law, we agree with the trial court.

{¶ 11} The Bank initially cites to the above holding in Maryhew to show why it was not subject to the jurisdiction of the trial court. In Maryhew the plaintiff requested on November 6, 1980, that service be sent to the defendant by certified mail. Id. at 155, 464 N.E.2d 538. However, the plaintiff was notified by the clerk of courts on November 12, 1980, that the certified letter was returned by the post office marked "unknown". Id. The plaintiff then took no further action to obtain service of process. Id. On December 1, 1981, the defendant filed a motion to dismiss the complaint based upon the fact that the action was barred by the statute of limitations, lack of personal jurisdiction over the defendant, and insufficiency of service of process. Id. Although the trial court found that the defendant may have engaged in "legal gamesmanship", the failure of the plaintiff to obtain service of process once notified that the original attempt had failed meant that there was no service of process within one year which required the dismissal of the case. Id. at 159, 464 N.E.2d 538. Since the statute of limitations had run, the case was dismissed with prejudice. Id.

{¶ 12} The facts in Maryhew are clearly distinguishable from the facts in this case. In Maryhew , the plaintiff was notified that service had not been perfected and took no steps to remedy the situation. There was no presumption that service was proper. Here, the praecipe requested a summons along with the complaint and the order of joinder, the clerk was required by the civil rules to send the summons, an envelope was sent, the Bank admittedly signed for the envelope, and the Bank never contacted anyone at the court or Lisa to inquire about the situation or indicate that there was an issue. The return receipt was filed in the docket. Lisa had a right to presume that service was proper.

{¶ 13} The Bank also argues that the trial court was required to vacate the prior judgment because it was void ab initio since it lacked personal jurisdiction. In support of that argument the Bank cites to State ex rel. Ballard v. O'Donnell , 50 Ohio St.3d 182, 553 N.E.2d 650 (1990). Ballard involved a case where punitive damages were awarded against a person who was not served a summons, did not appear, and was not made a party to the proceedings. The Supreme Court of Ohio held that due process requires that one receive notice and an opportunity for a hearing prior to being deprived of life, liberty or property. Id. at 183, 553 N.E.2d 650. In Ballard , the plaintiffs' filed suit against various parties for breach of contract, including the attorney who prepared the documentation. Id. at 182, 553 N.E.2d 650. The record contained no indication that the attorney was ever "served with a summons, ever appeared before the trial court, or was joined as a defendant in the court proceedings." Id. The plaintiffs were awarded punitive damages against the attorney even though he was not a part of the suit in any way. The Supreme Court of Ohio held that since the attorney had never been served or otherwise made a party to the proceedings, he was entitled to a writ of mandamus vacating the judgment against him. Id. at 183-184, 553 N.E.2d 650.

{¶ 14} The facts of Ballard are distinguishable from the facts in this case. In Ballard , the defendant received no notice and was not joined as a party. Here, the Bank indisputably received notice that they were a party by the service of the complaint and by the service of the order of joinder. Additionally, the Bank was served with notice of all hearings and copies of all judgments. The Bank admits that it received all of these items and took no action, not even when the judgment entry affected their interest in the property or when Lisa took steps to enforce the judgment. The Bank did not even object when Lisa filed a motion to order the transfer of Greg's interest in the real estate. The record shows that the Bank received notice of this motion and did not object to the motion. Unlike the attorney in Ballard, the Bank continuously received notice of all filings and hearings, including an order of joinder.

{¶ 15} The Bank also claims that the trial court's decision is wrong pursuant to a holding of the 9th District Court of Appeals of Ohio in Schumacher v. Schumacher, 9th Dist. Summit No. 25411, 2011-Ohio-581, 2011 WL 444180. In Schumacher , the wife filed a motion to join Intec as a party-defendant so that she could obtain an interest in her husband's stock. Id. at ¶ 4. The trial court granted the motion to join Intec. Id. The only documents served upon Intec were her motions to enforce the judgment entry and the motion to join Intec. Id. at ¶ 12. No summons was requested and Intec was never notified of the scheduled hearings. Id. The appellate court determined that because Intec had never been made a party to the case in any way, the judgment against Intec was void. Id. at ¶ 15.

{¶ 16} Unlike the situation in Schumacher , Lisa took steps to properly join the Bank. Lisa requested that a summons, a copy of the amended complaint, and a copy of the order of joinder be sent to the Bank. The Bank admits that it received everything except the summons. The Bank also admits that it received notice of all hearings. Thus the facts of this case distinguish it from Schumacher.

{¶ 17} This Court notes that there is no question that a summons was requested. There is also no question that the Bank was served with a copy of the amended complaint, the order of joinder, notices of all hearings, and copies of all judgment entries. The record shows that the final judgment entry was entered on March 16, 2016. The Bank did not indicate that there was a problem till more than a year later, even though it had knowledge of the judgment. Between the final judgment and the motion to vacate the judgment, there was an appeal taken and actions taken to enforce the judgment. The Bank had notice of these and did not object to the enforcement of the judgment, including the motion to terminate Greg's interest in the real estate.

{¶ 18} In April of 2017, the Bank filed its motion to vacate the final judgment of divorce. The Bank claimed that the judgment was a default judgment and was void due to a lack of a summons. In support, the Bank submitted an affidavit which claimed that a review of business records did not reveal they had received a summons. Upon receiving the motion, the trial court scheduled a hearing on the motion. At the hearing, the Bank had the burden of proof, but chose to rely solely upon the affidavit. The Bank did not call anyone to testify regarding the business records and did not call the clerk of courts to testify as to whether a summons was or was not sent. The trial court determined that the Bank's inaction was a voluntary submission to jurisdiction and that the Bank did not meet its burden of proof that it had not been made a party to the case. We agree.

{¶ 19} Upon review, we note that the original judgment was not a default judgment, but occurred after the issues were fully litigated at a hearing. Although the Bank chose not to take part in that litigation, Greg, as the other defendant, did litigate the issues. The record shows that Lisa requested a summons be sent, along with the amended complaint and the order of joinder, in her praecipe. Upon the return receipt from the Bank being placed on the docket, Lisa was entitled to a presumption that service was complete. The Bank did present evidence that it did not receive a summons, but the trial court was free to believe or disbelieve that evidence.

{¶ 20} Additionally, even if the trial court determined that no summons was issued, the trial court could determine that the Bank involuntarily submitted to the jurisdiction of the court by the actions of the party or its legal representative. Maryhew, supra at 156, 464 N.E.2d 538. In this case, the Bank had actual notice not only of the proceedings, but of the order joining them as a party and actual notice of all hearings. The Bank has admitted this. The Bank also admitted that it had received copies of all judgments. At oral argument, counsel admitted that a reasonable person would likely have taken some action upon receiving all of these filings and hearings. However, the Bank chose not to take any actions for more than one year, despite numerous notices and opportunities to do so. These choices were actions from which it could be determined that the Bank involuntarily submitted to the jurisdiction of the trial court. Therefore, the trial court did not err in finding that it had jurisdiction over the Bank and by denying the motion to vacate the final judgment for lack of jurisdiction. The assignment of error is overruled.

{¶ 21} Having found no prejudice in the particulars assigned and argued, the judgment of the Court of Common Pleas of Auglaize County, Domestic Relations Division, is affirmed.

Judgment Affirmed

ZIMMERMAN and PRESTON, JJ., concur.

      Although a transcript of the final hearings was not submitted, Greg's deposition was filed with the trial court. In his deposition, Greg admitted on multiple occasions that Lisa did not know about the note and mortgage and had not signed them. Greg admitted that he had signed her name and then had a friend notarize the signatures. Greg's Dep. at 22, 32, 38-40

      Greg was still liable on the mortgage and note, but given his legal troubles resulting from convictions for theft and forgery, along with his prior financial misconduct, the trial court was aware that his payment was not a certainty.


source: Caselaw Access Project

author: LUPER SCHUSTER, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Amber N. BROWN, Defendant-Appellant.
    No. 17AP-351
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on April 17, 2018
    On brief: Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, Columbus, and Melanie R. Tobias, for appellee. Argued: Melanie R. Tobias.
    On brief: Yeura R. Venters, Public Defender, and George M. Schumann, Columbus, for appellant. Argued: George M. Schumann.
    DECISION
   LUPER SCHUSTER, J.

{¶ 1} Defendant-appellant, Amber N. Brown, appeals from a judgment entry of the Franklin County Municipal Court finding her guilty, pursuant to no contest plea, of two counts of operating a vehicle while under the influence of alcohol ("OVI") and one count of impermissibly parking on a highway. For the following reasons, we reverse.

I. Facts and Procedural History

{¶ 2} On July 14, 2016, plaintiff-appellee, State of Ohio, issued a citation and summons to Brown for one count of OVI, in violation of R.C. 4511.19(A)(1)(a) ; one count of OVI test refusal with prior conviction, in violation of R.C. 4511.19(A)(2) ; and one count of impermissibly parking on highways, in violation of R.C. 4511.66. Brown initially entered a plea of not guilty.

{¶ 3} On September 20, 2016, Brown filed a motion to suppress the evidence obtained from the warrantless seizure of Brown. In her motion, Brown argued the state trooper lacked a reasonable suspicion to stop and detain her or to expand the scope of her detention. Brown additionally argued the state trooper did not have probable cause to arrest her. The state filed a memorandum contra Brown's motion to suppress, and the trial court set the matter for a hearing.

{¶ 4} At a suppression hearing on December 15, 2016, defense counsel stipulated that the trooper had "reasonable suspicion for the stop," or "reasonable suspicion to approach in the first place." (Tr. at 5.) Defense counsel stated it was going to limit the scope of the hearing to "the question of probable cause." (Tr. at 5.) After some discussion, defense counsel stated it would concede the issue of impairment for purposes of the hearing and that the sole question for the hearing was whether the law enforcement officer had probable cause to believe Brown was operating the vehicle.

{¶ 5} Michael Waters, who was employed as a state trooper with the Ohio State Highway Patrol at the time of Brown's arrest, testified that during the early morning hours of July 14, 2016, he was concluding an unrelated traffic stop when a car passed him traveling the opposite direction. The state played the dash cam video from Trooper Waters' car and asked him to describe what was happening.

{¶ 6} The video shows a vehicle's headlights pass by Trooper Waters' patrol car heading westbound at 2:54 a.m. When he first noticed the car, Trooper Waters said there was nothing about it that initially drew his attention. Trooper Waters testified he turned around to head back to his post and stopped at a red light at the intersection of Livingston Avenue and Longsdale Road alongside the vehicle that had just passed him. The other vehicle was in the right lane, and when Trooper Waters looked over to it, he noticed there was no one in the driver's seat. The vehicle's engine was running, and Trooper Waters saw a person in the front passenger seat and three people in the back seat. Only five seconds elapsed from the time the vehicle's brake lights went off at the traffic light to the time Trooper Waters pulled up alongside the vehicle.

{¶ 7} When the traffic light turned green, the other vehicle did not move. Trooper Waters activated his overhead lights and backed his vehicle up to get directly behind the other vehicle. As he was backing up, Trooper Waters saw the right-side rear passenger door open and Brown emerged from the car. Trooper Waters watched Brown walk around the front of the car toward the driver's side where she "motioned her left hand towards the driver's door" but she did not touch the driver's door handle. (Tr. at 19.) At that point, Trooper Waters made contact with Brown and she began speaking with him. Trooper Waters testified he never saw Brown in the driver's seat.

{¶ 8} When he approached Brown, Trooper Waters told her to step back from the car, and he permitted her to stand outside. Trooper Waters testified that Brown appeared intoxicated and that she was very emotional. Upon asking Brown if she had been driving, Brown "became upset and started crying, then she said she did not drive." (Tr. at 15.) Trooper Waters approached the vehicle and asked the other occupants who had been driving, but each one denied any of them had been driving. Trooper Waters said the other occupants did not appear to be upset, and he said it is his experience that drivers in OVI cases are typically more upset than passengers.

{¶ 9} Of the occupants remaining in the rear seat of the vehicle, Trooper Waters said one person was seated directly behind the driver's seat and one person was seated directly behind the front passenger seat, but no one was seated in the rear middle seat. The other occupants told Trooper Waters they had been in their same seats the whole time. None of the other occupants said Brown was the driver.

{¶ 10} Brown was not the owner of the car; it belonged to one of the other occupants of the vehicle. Trooper Waters testified he did not believe the vehicle's owner was the driver because "she never admitted that she was driving." (Tr. at 39.) Trooper Waters said he asked Brown several times whether she had been driving but she denied she had been driving each time. Trooper Waters also asked Brown if she had been in the driver's seat and she responded that she "did not jump out of the driver's seat." (Tr. at 30.) Additionally, Brown asked Trooper Waters several times whether she could take a portable breath test to "see if [she was] okay to drive." (Tr. at 30.)

{¶ 11} Following their exchange outside the car, Trooper Waters brought Brown to his patrol car to identify her and to see if he could "get some more information of who was actually driving the car." (Tr. at 20.) Brown told Trooper Waters she and her friends had been celebrating her birthday. While inside the patrol car, Brown told Trooper Waters she was "sorry" and said she had "done this before," but he did not know what she meant by that statement. (Tr. at 22.) After Trooper Waters identified Brown and ran her information, he learned she had a prior OVI conviction.

{¶ 12} Trooper Waters then had Brown perform field sobriety tests, and he testified she "performed poorly." (Tr. at 20.) Upon her completion of the field sobriety tests, Trooper Waters arrested Brown for OVI. After Trooper Waters informed Brown she was under arrest for OVI, Brown again stated she was not the driver.

Trooper Waters testified he did not believe Brown's denials based on the locations of the other occupants of the vehicle and the fact that Brown was "the first person to get out of the vehicle." (Tr. at 34.) Following her arrest, Brown refused the breath test at the patrol post.

{¶ 13} During closing argument, the state argued "this hearing is about whether or not [Trooper Waters] had probable cause to believe that [Brown] was operating the vehicle." (Tr. at 40.) Defense counsel argued Trooper Waters had insufficient information to establish probable cause to believe that Brown had been driving. At the conclusion of the hearing, the trial court stated:

But what we're doing here at this motion hearing is talking about reasonable suspicion, reasonable suspicion to stop. It's there because you got a driverless car sitting on the road. Reasonable suspicion to detain Ms. Brown, I think that's there, too, because she gets out of the car and goes around, looks like she's making her way to the driver's seat, actually, asking for permission to drive, more or less, by wanting to submit to a test.
So I think that the reasonable suspicion is there. The ultimate question of whether she was driving or not, which is basically what this case turns on, honestly, I think it's a question for the jury because it's not based on reasonable suspicion. It's based on beyond a reasonable doubt. So the reasonable suspicion is there. Whether you can show beyond a reasonable doubt, I don't know. That's not my job at this hearing. So there's no specific request in this motion for the driving issue to be determined, just asking me to determine reasonable suspicion. And I'm going to say it's there.

(Tr. at 45-46.) Based on those reasons, the trial court then overruled Brown's motion to suppress. The trial court journalized its decision in a December 15, 2016 entry.

{¶ 14} Following the trial court's denial of her motion to suppress, on April 17, 2017, Brown entered a no contest plea to all the charges. At the plea hearing, Brown stated she was entering a no contest plea so that she could appeal the trial court's ruling on her motion to suppress. The trial court accepted Brown's no contest plea and sentenced her to 180 days in jail with 160 days suspended for two years of community control as well as a $525 fine. The trial court journalized Brown's convictions and sentence in an April 18, 2017 judgment entry. Brown timely appeals.

II. Assignments of Error

{¶ 15} Brown assigns the following errors for our review:

[1.] The trial court erred by failing to apply the probable cause standard for a warrantless arrest when it denied the defendant-appellant's motion to suppress unconstitutionally obtained evidence from her warrantless arrest.
[2.] The trial court erred in denying the defendant-appellant's motion to suppress unconstitutionally obtained evidence because there was insufficient evidence to establish that the officer had probable cause to believe that the defendant-appellant had operated a vehicle while under the influence of alcohol.
[3.] The trial court's failure to find that the officer lacked a reasonable suspicion to detain the defendant-appellant to conduct field sobriety tests was plain error.

III. First Assignment of Error-Motion to Suppress

{¶ 16} In her first assignment of error, Brown argues the trial court erred when it denied her motion to suppress. More specifically, Brown argues the trial court applied the incorrect legal standard when considering the propriety of her arrest.

{¶ 17} " 'Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.' " (Citations omitted.) State v. Roberts , 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100, quoting State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶ 18} The Fourth Amendment to the United States Constitution as applied to the states through the Fourteenth Amendment, as well as Article I, Section 14, of the Ohio Constitution, prohibits the government from conducting warrantless searches and seizures, rendering them per se unreasonable unless an exception applies. State v. Mendoza , 10th Dist. No. 08AP-645, 2009-Ohio-1182, 2009 WL 690204, ¶ 11, citing Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), superseded by statute on other grounds . There is no dispute here that Trooper Waters arrested Brown without a warrant. The issue here is whether Brown's arrest falls within any of the well-established exceptions to the warrant requirement.

{¶ 19} In denying Brown's motion to suppress, the trial court stated there was both reasonable suspicion to stop and reasonable suspicion to detain Brown. One of the recognized exceptions to the warrant requirement is an investigatory detention, commonly referred to as the Terry stop. Under Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a police officer may stop or detain an individual without probable cause when the officer has reasonable suspicion, based on specific, articulable facts, that criminal activity is afoot. Mendoza at ¶ 11, citing Terry at 21, 88 S.Ct. 1868. Accordingly, "[a]n investigative stop does not violate the Fourth Amendment to the United States Constitution if the police have reasonable suspicion that 'the person stopped is, or is about to be, engaged in criminal activity.' " State v. Jordan , 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, ¶ 35, superseded by statute on other grounds , quoting United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981).

{¶ 20} Reasonable suspicion entails some minimal level of objective justification, "that is, something more than an inchoate and unparticularized suspicion or 'hunch,' but less than the level of suspicion required for probable cause." State v. Jones , 70 Ohio App.3d 554, 556-57, 591 N.E.2d 810 (2d Dist.1990), citing Terry at 27, 88 S.Ct. 1868. Accordingly, "[a] police officer may not rely on good faith and inarticulate hunches to meet the Terry standard of reasonable suspicion." Jones at 557, 591 N.E.2d 810. An appellate court views the propriety of a police officer's investigative stop or detention in light of the totality of the surrounding circumstances. State v. Bobo , 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus.

{¶ 21} Brown concedes Trooper Waters had reasonable suspicion for the initial stop and her initial detention in order to determine who had been driving. Indeed, Brown conceded as much at the trial court and instead limited the scope of the suppression hearing to whether Trooper Waters had probable cause to arrest Brown.

{¶ 22} "A warrantless arrest that is based upon probable cause and occurs in a public place does not violate the Fourth Amendment." State v. Brown , 115 Ohio St.3d 55, 2007-Ohio-4837, ¶ 66, 873 N.E.2d 858, citing United States v. Watson , 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). "In determining whether a police officer has probable cause to arrest a suspect for OVI, a court considers whether, at the moment of arrest, the officer had information within the officer's knowledge, or derived from a reasonably trustworthy source, of facts and circumstances sufficient to cause a prudent person to believe the suspect was driving under the influence of alcohol, drugs, or both." State v. Montelauro , 10th Dist. No. 11AP-413, 2011-Ohio-6568, 2011 WL 6650328, ¶ 20, citing State v. Homan , 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000), superseded by statute on other grounds . The trial court must examine the totality of the circumstances surrounding the arrest in making this determination. Id.

{¶ 23} The stipulated issue at the suppression hearing was whether Trooper Waters had probable cause to arrest Brown. More specifically, the issue was whether Trooper Waters had probable cause to believe Brown was the driver of the vehicle. Despite this stipulation, however, the trial court declined to make any findings related to Brown's operation of the vehicle, stating instead that was an issue for the jury. The trial court did not engage in any analysis of probable cause; rather, it denied Brown's motion to suppress on the basis of reasonable suspicion to stop and reasonable suspicion to detain. Because the arrest could only be valid if Trooper Waters had probable cause to arrest Brown, the trial court erred when it analyzed Brown's motion to suppress "under the rubric of reasonable suspicion rather than that of probable cause." State v. Byrd , 10th Dist. No. 15AP-1091, 2016-Ohio-7670, 2016 WL 6602214, ¶ 26, citing State v. Muldrow , 10th Dist. No. 15AP-1119, 68 N.E.3d 260, 2016-Ohio-4774, 2016 WL 3574566, ¶ 24 (a trial court errs when it applies the incorrect legal standard in its ruling on a motion to suppress).

{¶ 24} Though the state concedes it was error for the trial court to deny the motion based on reasonable suspicion to stop and detain, the state argues this court should nonetheless affirm the denial of a motion to suppress because the record supports a finding that Trooper Waters had probable cause to arrest. However, the trial court only rendered factual findings related to its reasonable suspicion analysis, specifically declining to make any findings regarding Brown's operation of the vehicle. As the United States Supreme Court has explained, "[r]easonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). The appropriate remedy in a case where the trial court applies the wrong legal standard in analyzing a motion to suppress is to remand the matter to the trial court to make the appropriate factual findings relevant to a probable cause analysis for Brown's arrest and then determine, in the first instance, whether the law enforcement officer had probable cause to make the arrest. Byrd at ¶ 27, citing Muldrow at ¶ 26 (where trial court applies wrong legal standard in a motion to suppress, the appropriate remedy is to remand for the trial court to apply the correct legal standard with appropriate factual findings).

{¶ 25} Thus, because the trial court applied the wrong legal standard in analyzing Brown's motion to suppress, we sustain Brown's first assignment of error.

IV. Second and Third Assignments of Error-Operation of Vehicle and Field Sobriety Tests

{¶ 26} In her second assignment of error, Brown argues that, in lieu of remand, this court should apply the facts from the suppression hearing to a probable cause analysis and conclude Trooper Waters lacked probable cause to believe Brown was the driver of the vehicle. In her third and final assignment of error, Brown argues it was error for the trial court to fail to make a determination about the validity of the field sobriety tests. However, our resolution of Brown's first assignment of error renders moot her second and third assignments of error and we need not address them. See Byrd at ¶ 34.

V. Disposition

{¶ 27} Based on the foregoing reasons, the trial court erred when it analyzed Brown's motion to suppress under the standard of reasonable suspicion rather than probable cause. Because of the trial court's erroneous application of the legal standard, the trial court did not make the appropriate factual findings necessary to apply the probable cause analysis. Having sustained Brown's first assignment of error and Brown's second and third assignments of error being moot, we reverse the judgment of the Franklin County Municipal Court and remand this matter to that court with instructions for the court to consider the evidence at the suppression hearing and make, in the first instance, the appropriate legal determinations consistent with this decision.

Judgment reversed; cause remanded with instructions.

DORRIAN and HORTON, JJ., concur.


author: TEODOSIO, Judge.

text:
    STATE of Ohio, Appellee v. Andrew G. PALMER, Appellant
    No. 28723
    Court of Appeals of Ohio, Ninth District, Summit County.
    Dated: April 18, 2018
    ANDREW G. PALMER, pro se, Appellant.
    SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   TEODOSIO, Judge.

{¶ 1} Appellant, Andrew G. Palmer, appeals from the denial of his petition for post-conviction relief in the Summit County Court of Common Pleas. This Court affirms.

I.

{¶ 2} This Court previously outlined the underlying facts in this case on direct appeal. See State v. Palmer , 9th Dist. Summit No. 28303, 2017-Ohio-2639, 2017 WL 1749087, ¶ 2-5. To summarize, an Akron Police K-9 alerted to a FedEx parcel sent by Mr. Palmer to California. Id. at ¶ 2. The police obtained a search warrant for the parcel and discovered $18,000.00 in cash inside. Id. Several officers went to Mr. Palmer's house to talk to him. Id. at ¶ 3. While speaking to Mr. Palmer and awaiting a search warrant for the residence, UPS delivered a package to Mr. Palmer's front porch. Id. The police obtained a search warrant for the UPS package as well. Id. at ¶ 4. Three pounds of marijuana were discovered inside the UPS package. Id. $5,980.00 in cash was discovered inside the residence along with another pound of marijuana. Id.

{¶ 3} After a jury trial, Mr. Palmer was convicted of possession of marijuana and trafficking in marijuana, and $23,980.00 was subject to forfeiture. Id. at ¶ 5. The two counts merged for sentencing and Mr. Palmer was sentenced to thirty months in prison. Id. This Court affirmed Mr. Palmer's convictions on appeal. Id. at ¶ 16. One month after our decision, Mr. Palmer filed a timely petition for post-conviction relief in the trial court, which was denied without a hearing.

{¶ 4} Mr. Palmer now appeals from the trial court's denial of his petition for post-conviction relief and raises eight assignments of error for this Court's review.

{¶ 5} For ease of analysis, we will rearrange and consolidate Mr. Palmer's assignments of error accordingly.

II.

ASSIGNMENT OF ERROR FOUR

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DURING THE SUPPRESSION HEARING WHEN COUNSEL FAILED TO MOVE TO SUPPRESS EVIDENCE OBTAINED FROM THE FEDEX PACKAGE WHEN (A) THE PACKAGE WAS SEIZED PRIOR TO THE ESTABLISHMENT OF REASONABLE ARTICULABLE SUSPICION IN ORDER TO SUBJECT IT TO A DOG SNIFF TEST, AND, (B) THE POLICE OFFICER SEIZED THE PACKAGE A SECOND TIME, REMOVED THE PACKAGE FROM THE FEDEX BUILDING, DROVE THE PACKAGE TO THE COURTHOUSE, TOOK THE PACKAGE TO THE JUDGE'S CHAMBERS, ALL WITHOUT HAVING A WARRANT IN THE FIRST PLACE[.]

ASSIGNMENT OF ERROR SIX

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO CHALLENGE THE INSUFFICIENT PROOF OF A COMPLETE CHAIN OF CUSTODY OF THE FEDEX PACKAGE, ESPECIALLY IN LIGHT OF THE FACT THAT THE POLICE OFFICER REMOVED THE PACKAGE FROM THE BUILDING FOR SEVERAL HOURS WITHOUT PROVIDING TIME[ ]LINES OR CHAIN OF EVENTS OF CUSTODY[.]

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT APPLIED THE STANDARDS OF STRICKLAND V. WASHINGTON INCORRECTLY IN EVALUATING THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS[.]

ASSIGNMENT OF ERROR THREE

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN DENYING PETITIONER'S POST-CONVICTION RELIEF WITHOUT ADDRESSING THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.

ASSIGNMENT OF ERROR EIGHT

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ITS JUDGMENT, WHEN THE TRIAL COURT RULED THAT APPELLANT'S PETITION FAILED TO CONTAIN SUFFICIENT EVIDENCE TO SUPPORT HIS REQUEST FOR AN EVIDENTIARY HEARING[.]

{¶ 6} In his fourth and sixth assignments of error, Mr. Palmer argues that his trial counsel was ineffective for failing to challenge the warrantless seizure of the FedEx parcel as well as the chain of custody of the parcel. In his second and third assignments of error, Mr. Palmer argues that the trial court, in denying his petition for post-conviction relief, erred by incorrectly applying the Strickland standard to his ineffective assistance of counsel claims and further erred by failing to address his ineffective assistance of counsel claims. In his eighth assignment of error, Mr. Palmer argues that the trial court erred in finding that his petition for post-conviction relief lacked sufficient operative facts to warrant an evidentiary hearing. We disagree with all five propositions.

{¶ 7} R.C. 2953.21(A)(1)(a) permits anyone convicted of a criminal offense "who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States" to "file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief." Affidavits and other documentary evidence may be submitted in support of the claim for relief. Id. In reviewing a petition for post-conviction relief, "a trial court should give due deference to affidavits sworn to under oath and filed in support of the petition, but may, in the sound exercise of discretion, judge the credibility of the affidavits in determining whether to accept the affidavits as true statements of fact." State v. Calhoun , 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), paragraph one of the syllabus.

{¶ 8} "The post[-]conviction relief process is not itself a constitutional right" and petitioners receive no more rights than those granted by the statute. State v. Wesson , 9th Dist. Summit No. 25874, 2012-Ohio-4495, 2012 WL 4480109, ¶ 7, citing Calhoun at 281, 714 N.E.2d 905. A petitioner seeking post-conviction relief is not automatically entitled to a hearing. State v. Phillips , 9th Dist. Summit No. 20692, 2002 WL 274637, *2 (Feb. 27, 2002), citing Calhoun at 282, 714 N.E.2d 905. "The trial court serves a gatekeeping function in post[-]conviction relief cases-it determines whether the petitioner will even receive a hearing." Wesson at ¶ 9, citing State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51. A trial court properly denies a petition for post-conviction relief without holding an evidentiary hearing where the petition, the supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that the petitioner set forth sufficient operative facts to establish substantive grounds for relief. Calhoun at paragraph two of the syllabus.

{¶ 9} "Generally, this Court reviews a trial court's denial of a post-conviction relief petition for an abuse of discretion" unless the trial court denied the petition solely on the basis of an issue of law, which we then review de novo. State v. Childs , 9th Dist. Summit No. 25448, 2011-Ohio-913, 2011 WL 721311, ¶ 9. Our review of a denial of a petition for post-conviction relief without a hearing is two-fold: First, we "review the trial court's decision to determine whether its findings are supported by competent and credible evidence" and; second, if the findings are properly supported, we "review[ ] the trial court's decision in regard to its gatekeeping function for an abuse of discretion." Wesson at ¶ 11, citing Gondor at ¶ 52. "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). When applying an abuse of discretion standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd. , 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993).

{¶ 10} In his petition for post-conviction relief, Mr. Palmer claimed that his trial counsel should have challenged the seizure of the FedEx parcel as an unreasonable seizure because the external characteristics of the parcel did not create a reasonable suspicion in order to seize the parcel and subject it to a dog sniff. He further argued that he received ineffective assistance of counsel because trial counsel failed to challenge the chain of custody of the FedEx parcel.

{¶ 11} We note that Mr. Palmer's ineffective assistance of counsel claims are not barred by the doctrine of res judicata. "When a defendant is represented by different counsel at trial and on direct appeal, res judicata ordinarily bars the relitigation of any ineffective assistance of counsel claims that could have been raised on direct appeal without reference to evidence dehors the record." (Emphasis deleted.) State v. Pannell , 9th Dist. Wayne No. 98CA0034, 1999 WL 25618, *2 (Jan. 20, 1999), citing State v. Lentz , 70 Ohio St.3d 527, 639 N.E.2d 784 (1994), syllabus. However, Mr. Palmer was represented by the same counsel at trial and on appeal, so his ineffective assistance claims are not barred by res judicata. The State likewise concedes that these claims are not barred by res judicata.

{¶ 12} "[I]n Ohio, a properly licensed attorney is presumed competent." Gondor at ¶ 62. "Counsel can provide effective assistance using numerous tactics in any given case, and debatable trial strategies do not constitute ineffective assistance of counsel." State v. Shirley , 9th Dist. Summit No. 20569, 2002 WL 5177, *7 (Jan. 2, 2002). To prove ineffective assistance of counsel, Mr. Palmer must establish that: (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel's performance is deficient if it falls below an objective standard of reasonable representation. State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Prejudice can be shown by proving "there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different."

Id. at paragraph three of the syllabus. "[T]he Court need not address both Strickland prongs if an appellant fails to prove either one." State v. Lortz , 9th Dist. Summit No. 23762, 2008-Ohio-3108, 2008 WL 2514053, ¶ 34.

{¶ 13} Mr. Palmer attached several documents to his petition, including: (1) his own sworn affidavit, in which he simply avers in a single sentence that he received ineffective assistance of counsel, (2) four pages of a partial transcript, (3) the supporting affidavit for the search warrant of the FedEx parcel, and (4) his sentencing entry.

{¶ 14} The trial court stated the standard in Strickland and found that even though Mr. Palmer's motion to suppress was denied and his convictions were later affirmed on appeal, those results were not the product of ineffective assistance of counsel. The court noted that Mr. Palmer's court-appointed counsel argued a suppression motion at two separate hearings. Mr. Palmer then retained counsel, who filed numerous motions on Mr. Palmer's behalf before representing him both at trial and on appeal. The court further noted the lack of evidence in the record and in Mr. Palmer's petition supporting his ineffective assistance claims, and found that the petition did not contain sufficient operative facts to warrant an evidentiary hearing.

{¶ 15} We conclude that the trial court's findings are supported by competent and credible evidence. In a suppression motion and at two suppression hearings, trial counsel's strategy was to challenge the officers' entry into Mr. Palmer's house and the validity of the initial search warrant to open the FedEx parcel. See Palmer , 2017-Ohio-2639, at ¶ 10-11. Counsel's decision not to pursue every possible angle is not ineffective assistance. See State v. Hairston , 9th Dist. Lorain No. 05CA008768, 2006-Ohio-4925, 2006 WL 2716833, ¶ 69. Moreover, the use of a drug detection dog does not constitute a "search" within the meaning of the Fourth Amendment and police are not required, prior to a dog sniff, to establish either probable cause or a reasonable suspicion that drugs are concealed. See State v. Brooks , 9th Dist. Summit, 2016-Ohio-7025, 72 N.E.3d 146, ¶ 14. Counsel certainly cannot be said to be ineffective for failing to pursue an argument that would not have been successful. See State v. Bailey , 4th Dist. Ross No. 14CA3461, 2015-Ohio-5483, 2015 WL 9589596, ¶ 42. None of the evidence attached to Mr. Palmer's petition supports a claim of ineffective assistance of counsel. The supporting affidavits, the documentary evidence, the files, and the records do not demonstrate that Mr. Palmer set forth sufficient operative facts to establish substantive grounds for relief. See Calhoun , 86 Ohio St.3d 279, 714 N.E.2d 905, at paragraph two of the syllabus. See also State v. Bishop , 9th Dist. Lorain No. 97CA006905, 1998 WL 831395, *5 (Nov. 25, 1998) ("[A] personal affidavit containing little more than vague assertions of inadequate counsel [is] inadequate to establish the substantive grounds for relief that R.C. 2953.21 requires be found before an evidentiary hearing is granted."). The trial court properly applied the standard in Strickland , and Mr. Palmer has failed to show either deficient performance by trial counsel or resulting prejudice. Mr. Palmer's claim that the trial court failed to address his ineffective assistance claims is without merit. Accordingly, we conclude that the trial court did not err or abuse its discretion in denying Mr. Palmer's petition for post-conviction relief without a hearing.

{¶ 16} Mr. Palmer's fourth, sixth, second, third, and eighth assignments of error are overruled.

ASSIGNMENT OF ERROR FIVE

THE TRIAL COURT ERRED IN FINDING PROBABLE CAUSE TO ISSUE

A SEARCH WARRANT TO SEARCH THE FEDEX PACKAGE WHERE THE AFFIDAVIT LACKED SUFFICIENT FACTUAL GROUNDS TO ISSUE THE SEARCH WARRANT.

ASSIGNMENT OF ERROR SEVEN

APPELLANT WAS DENIED A FAIR TRIAL WHEN THE PROSECUTOR WITHHELD EXCULPATORY EVIDENCE, AND THEN DESTROYED THAT EVIDENCE IMMEDIATELY FOLLOWING TRIAL, IN VIOLATION OF OHIO AND FEDERAL LAW PURSUANT TO BRADY V. MARYLAND, * * * KYLES V. WHITLEY, * * * ARIZONA V. YOUNGBLOOD, * * * CALIFORNIA V. TROMBETTA, * * * AND U.S. CONST. AMENDS VI, XIV; OHIO CONST. SECT. 1 & 10, ART. I[.]

ASSIGNMENT OF ERROR ONE

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY RULING THAT SOME OF THE CLAIMS RAISED IN THE POST[-]CONVICTION PETITION HAD ALREADY BEEN RAISED ON DIRECT APPEAL WITHOUT STATING ON THE RECORD WHICH CLAIMS HAD ALREADY BEEN RAISED, OR, WITHOUT PROPERLY APPLYING THE DOCTRINE OF RES JUDICATA[.]

{¶ 17} In his fifth assignment of error, Mr. Palmer argues that the trial court erred in finding that there was probable cause to support the issuance of a search warrant. In his seventh assignment of error, Mr. Palmer argues that the prosecutor withheld and destroyed exculpatory evidence. In his first assignment of error, he argues that the trial court, in denying his petition for post-conviction relief, erred in its application of the doctrine of res judicata and failed to state which claims were barred. We disagree with all three propositions.

{¶ 18} A petition for post-conviction relief may be properly dismissed without a hearing on the basis of res judicata. State v. Griffin , 9th Dist. Lorain No. 14CA010680, 2016-Ohio-2988, 2016 WL 2855532, ¶ 14. Pursuant to the doctrine of res judicata:

[A] final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.

State v. Perry , 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. To avoid the preclusive effect of res judicata, post-conviction relief claims must be "based on evidence outside of the original record that existed during direct appellate proceedings." State v. Bulls , 9th Dist. Summit No. 27713, 2015-Ohio-5094, 2015 WL 8347458, ¶ 9.

{¶ 19} Nevertheless, "[p]resenting evidence outside the record does not automatically defeat the doctrine of res judicata." (Emphasis deleted.) State v. Stallings , 9th Dist. Summit No. 19620, 2000 WL 422423, *1 (Apr. 19, 2000). The evidence " 'must meet some threshold standard of cogency; otherwise it would be too easy to defeat the holding of Perry by simply attaching as exhibits evidence which is only marginally significant and does not advance the petitioner's claim[.]' " Id. , quoting State v. Lawson , 103 Ohio App.3d 307, 315, 659 N.E.2d 362 (12th Dist.1995), quoting State v. Coleman , 1st Dist. Hamilton No. C-900811, 1993 WL 74756, *7 (Mar. 17, 1993). The evidence dehors the record must also "demonstrate that the claims advanced in the petition could not have been fairly determined on direct appeal based on the original trial court record without resorting to evidence outside the record." (Emphasis deleted.) Stallings at *1. Accordingly, Mr. Palmer bears the burden to produce evidence dehors the record that would render the judgment void or voidable and also show that he could not have appealed the claim based upon information contained in the original record. See State v. Nemchik , 9th Dist. Lorain No. CA98CA00729, 2000 WL 254908, *1 (Mar. 8, 2000). When a trial court denies a petition for post-conviction relief on the basis of an issue of law, such as the doctrine of res judicata, this Court reviews the matter de novo. See State v. Tauwab , 9th Dist. Summit No. 28022, 2017-Ohio-81, 2017 WL 112450, ¶ 10.

{¶ 20} In his petition, Mr. Palmer argued that the trial court erred in finding probable cause to issue the search warrant. He also claimed that the State withheld and destroyed exculpatory evidence, to wit: the seized cash and a FedEx surveillance video allegedly showing that a dog sniff never occurred.

{¶ 21} The trial court found that Mr. Palmer already argued his claims in his direct appeal, with the exception of his ineffective assistance of counsel claims.

{¶ 22} We conclude that the trial court's findings are supported by competent and credible evidence. Mr. Palmer previously challenged whether there was sufficient probable cause to issue a search warrant in his motion to suppress at the trial court level. See Palmer , 2017-Ohio-2639, at ¶ 10. Therefore, the argument could have been raised on appeal and is now barred by res judicata. The record shows that $23,980.00 in cash was seized and forfeited in this case. See id. at ¶ 43. Nothing in the record suggests that the State withheld or destroyed either cash or a FedEx surveillance video. The purported evidence Mr. Palmer attached to his petition includes a self-serving affidavit and other documentation that was either part of the trial court record or was available to Mr. Palmer at the time of his direct appeal. He has not provided any evidence dehors the record that meets the threshold standard of cogency required to overcome the doctrine of res judicata.

{¶ 23} Mr. Palmer's claims that the trial court did not properly apply the doctrine of res judicata or specifically state on the record which claims were barred by res judicata are without merit. If a trial court dismisses a petition for post-conviction relief, "it shall make and file findings of fact and conclusions of law with respect to such dismissal." R.C. 2953.21(D). This requirement is necessary " 'to apprise petitioner of the grounds for the judgment of the trial court and to enable the appellate courts to properly determine appeals in such a cause.' " Calhoun , 86 Ohio St.3d 279, at 291, 714 N.E.2d 905, quoting Jones v. State , 8 Ohio St.2d 21, 22, 222 N.E.2d 313 (1966). "A trial court need not discuss every issue raised by appellant or engage in an elaborate and lengthy discussion in its findings of fact and conclusions of law. The findings need only be sufficiently comprehensive and pertinent to the issue to form a basis upon which the evidence supports the conclusion." Calhoun at 291-292, 714 N.E.2d 905. Here, although the trial court did not use the term "res judicata" precisely, it stated that Mr. Palmer's remaining claims were raised on direct appeal. We conclude that the trial court's findings of fact and conclusions of law were sufficient to apprise Mr. Palmer and appellate courts of the reasons for the denial of the petition.

{¶ 24} Accordingly, we conclude that the trial court did not err in denying Mr. Palmer's claims.

{¶ 25} Mr. Palmer's fifth, seventh, and first assignments of error are overruled.

III.

{¶ 26} All of Mr. Palmer's assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, P.J.

CALLAHAN, J.

CONCUR.


author: EILEEN T. GALLAGHER, P.J.:

text:
    Paul J. BROBST, et al., Plaintiffs-Appellants/Cross-Appellees v. CITY OF LYNDHURST, Defendant-Appellee/Cross-Appellant
    No. 105849
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: April 19, 2018
    Peter Turner, Mayers, Roman, Friedberg & Lewis, 28601 Chagrin Blvd., Suite 600, Cleveland, Ohio 44122, ATTORNEY FOR APPELLANTS
    Paul T. Murphy, Brendan Mewhinney, Raymond J. Schmidlin, Jr., Henderson, Schmidlin & McGarry Co., L.P.A., 840 Brainard Road, Highland Heights, Ohio 44143, ATTORNEYS FOR APPELLEE
    BEFORE: E.T. Gallagher, P.J., Stewart, J., and Blackmon, J.
    JOURNAL ENTRY AND OPINION
   EILEEN T. GALLAGHER, P.J.:

{¶ 1} Plaintiffs-appellants/cross-appellees, Paul J. Brobst, et al., appeal from the trial court's judgment granting summary judgment in favor of defendant-appellee/cross-appellant, the city of Lyndhurst, Ohio. The appellants raise the following assignment of error for review:

1. The trial court erred as a matter of law in denying appellants' motion for summary judgment, and, instead, in granting, in part, appellee's motion for summary judgment.

{¶ 2} The city raises the following cross-assignment of error:

1. The trial court erred in denying [the city's] motion to submit additional evidentiary materials.

{¶ 3} After careful review of the record and relevant case law, we reverse the trial court's judgment granting summary judgment in favor of the city. We, however, affirm the trial court's judgment denying the city's request to submit additional evidentiary material in support of its motion for summary judgment.

I. Procedural and Factual History

{¶ 4} Appellants have resided at, and have been owners of, the real property and dwelling located in the city of Lyndhurst, Ohio, since 1996. Appellants' home is located in an area of the city zoned for residential use. This appeal arises out of a dispute between the appellants and the city concerning whether the appellants' operation of a firearms dealership from their home constituted a "home occupation" in accordance with the city's codified ordinances.

{¶ 5} In 2005, appellant Paul Brobst met with the Lyndhurst Police Chief and the Lyndhurst Building Commissioner to discuss his plans to operate a firearms dealership out of his home. Mr. Brobst averred that he was informed that he would be permitted to operate the firearms dealership out of his home as long as he met the following conditions (1) only family members could be employees, (2) that he place no exterior signs advertising his business, (3) that the business would be limited to no more than 25 percent of the ground floor of his home, and (4) that the business would have no outside storage.

{¶ 6} After meeting with city officials, the appellants opened and continuously operated a firearms dealership known as "Gun Galaxy" from their home. Over the years, Mr. Brobst renewed his Federal Firearms License three times.

{¶ 7} In June 2016, the appellants received a notification letter from the city stating that they were illegally operating a commercial enterprise in a single family residential zone in violation of the city's ordinances. The appellants were advised that the city would take all actions permitted by law if appellants "d[id] not take steps to legalize this illegal use within 30 days of [the notification.]" In November 2016, appellants received a second notification letter, advising them "to cease operation of its business at that location, or to request a zoning change from the City Planning Commission, or request a use variance from the City Board of Zoning Appeals."

{¶ 8} In December 2016, the appellants filed a complaint against the city, seeking (1) "a declaratory judgment that the home occupation engaged in by [appellants] is in lawful compliance with the city's Zoning Code," and (2) "a preliminary and permanent injunction enjoining [the city] from taking an action, civil or otherwise, against [appellants] based on an alleged violation of the city's Zoning Code."

{¶ 9} In response, the city filed its answer and two counterclaims against the appellants. In its first counterclaim, the city sought injunctive relief to prevent the appellants from conducting a retail sales operation from their home in violation of Section 1152.13 of its Codified Ordinances. In its second counterclaim, the city sought a declaratory judgment that the appellants' in-home sales operation constituted a nuisance under Chapter 3767 of the Ohio Revised Code.

{¶ 10} Appellants moved for summary judgment in March 2017, arguing that their home occupation is a lawful accessory use in compliance with the city's zoning code. The city filed a brief in opposition and its own motion for summary judgment, arguing that the appellants were operating a retail store in violation of residential zoning restrictions. After the deadline for filings under the trial court's briefing schedule had expired, the city filed a motion to submit additional evidentiary materials, which the trial court denied.

{¶ 11} In April 2017, the trial court entered judgment in favor of the city on its counterclaim for injunctive relief, but against the city on its nuisance claim. The trial court further entered judgment against the appellants on both claims raised in their complaint. The trial court's judgment stated, in relevant part:

Ohio court decisions do not support the sale of goods from a residence as within the term "home occupation." The City appropriately describes this as simply a "retail store."
* * *
Based on the parties' evidentiary submissions on summary judgment, the Court finds that there is no genuine issue of material fact and after construing the evidence most strongly in Plaintiff's favor, a reasonable trier of fact could come to but one conclusion and that conclusion is that the operation of a firearms sales dealership from a property zoned for residential use is not a home occupation under Lyndhurst's ordinances and Plaintiff's sales operation is in violation thereof.
As to Defendant's second counterclaim to enjoin a nuisance, the Court finds that based on the evidentiary record before it today, there is no genuine issue of material fact and after construing the evidence most strongly in Defendant's favor, a reasonable trier of fact could come to but one conclusion and that conclusion is that Plaintiff's activities have not been established to be a nuisance as defined by R.C. 3767.01(C).

{¶ 12} The appellants now appeal from the trial court's judgment granting summary judgment in favor of the city. The city appeals from the trial court's denial of its motion to submit additional evidence in support of its motion for summary judgment.

II. Law and Analysis

{¶ 13} In their sole assignment of error, appellants argue the trial court erred as a matter of law in denying their motion for summary judgment and granting, in part, the city's motion for summary judgment.

{¶ 14} Our review of a trial court's grant of summary judgment is de novo. Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, said party being entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp. , 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three of the syllabus; Zivich v. Mentor Soccer Club , 82 Ohio St.3d 367, 696 N.E.2d 201 (1998). The party moving for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt , 75 Ohio St.3d 280, 662 N.E.2d 264 (1996).

{¶ 15} In their motion for summary judgment, the appellants argued that the operation of Gun Galaxy constituted a lawful "home occupation" pursuant to Lyndhurst City Ordinances ("L.C.O.") 1160.04(A). In contrast, the city maintained that the appellants were unlawfully operating a "retail store" in violation of the city's residential zoning restrictions. The parties do not dispute that the appellants' dwelling is located in a residential use zoning district. Thus, this court is required to assess whether the firearm-sales operation falls within the definition of a "home occupation," as the appellants suggest, or is an unlawful "retail store," as held by the trial court.

{¶ 16} The application of a statute or ordinance to the facts is a question of law. Cleveland Clinic Found. v. Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 25. In construing the ordinances at issue, we must adhere to the rules of statutory construction. See Bosher v. Euclid Income Tax Bd. of Rev. , 99 Ohio St.3d 330, 2003-Ohio-3886, 792 N.E.2d 181, ¶ 14. When the language of an ordinance is unambiguous, we apply the clear meaning of the words used. Id. In addition, provisions relating to the same general subject matter must be read in pari materia. Id. Finally, it is a well-established rule of construction that specific provisions shall prevail over general provisions. Village Condominiums Owners Assn. v. Montgomery Cty. Bd. of Rev. , 106 Ohio St.3d 223, 2005-Ohio-4631, 833 N.E.2d 1230, ¶ 10.

{¶ 17} L.C.O. 1150.09(c)(73) defines a "home occupation" as follows:

"Home occupation" means an accessory use which is an activity, profession, occupation, service, craft or revenue-enhancing hobby clearly incidental and subordinate to the use of the premises as a dwelling and is conducted entirely within the dwelling unit. However, such home occupation shall be conducted in the dwelling used by the person as his or her private residence, no person shall be employed other than members of his or her immediate household and such home occupation shall not give rise to a nuisance of any kind and shall not be otherwise detrimental to the district.

{¶ 18} At the time this case was initiated, the city's ordinances provided that an individual was permitted to operate a "home occupation" as an accessory use in a residential district, provided the following conditions were satisfied:

A. No person is employed other than members of his or her immediate household;
B. The home occupation or professional office generates no outdoor storage of materials, equipment or vehicles;
C. Such home occupation or professional office occupies no more than twenty-five percent of the total ground floor area of the dwelling;
D. The home occupation or professional office is conducted wholly within the dwelling;
E. No equipment is used which will create objectionable disturbances beyond the premises;
F. No window display or signboard is used to advertise such occupation, other than a name plate attached to the dwelling, as provided for in Section 1170.08, which may designate such occupation thereon along with the occupant's name and address; and
G. The home occupation or professional office does not change the residential character of the dwelling exterior.

L.C.O. 1160.04(a)(4).

{¶ 19} It is necessary to note that L.C.O. 1160.04(a)(4) was amended less than two months after the trial court's judgment in this case. The section now includes the following additional condition:

I. The home occupation shall not allow * * * sales of retail goods not manufactured or fabricated on the premises.

(Emphasis added.) L.C.O. 1160.04(a)(4)(I) (Ord. 2017-24. Effective June 5, 2017.). Certainly, this new condition is relevant to the issue presented in this case. If applicable, the appellants' firearm-sales operation would not comply with the requirements of L.C.O. 1160.04(a)(4) because the firearms sold from their home are not manufactured or fabricated on the premises. However, because the amendment to the ordinance was made after the trial court's judgment was rendered in this case, we are unable to consider the recent amendment to the city's planning and zoning code. Under R.C. 713.15 :

The lawful use of any dwelling, building, or structure and of any land or premises, as existing and lawful at the time of enacting a zoning ordinance or an amendment to the ordinance, may be continued, although such use does not conform with the provisions of such ordinance or amendment, but if any such nonconforming use is voluntarily discontinued for two years or more, or for a period of not less than six months but not more than two years that a municipal corporation otherwise provides by ordinance, any future use of such land shall be in conformity with sections 713.01 to 713.15 of the Revised Code. The legislative authority of a municipal corporation shall provide in any zoning ordinance for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses upon such reasonable terms as are set forth in the zoning ordinance.

Accordingly, our review is limited to whether the operation of Gun Galaxy qualifies as a lawful home occupation pursuant to the terms of the city's ordinances as they existed at the time this case was initiated. If so, the appellants are entitled to continue the operation of Gun Galaxy even though such use may not conform with the amended terms of L.C.O. 1160.04(a)(4).

{¶ 20} After careful consideration, we find that the intentional amendment of L.C.O. 1160.04(a)(4) to exclude the "sales of retail goods not manufactured or fabricated on the premises" demonstrates the city's attempt to add a new condition to the ordinance that did not exist at the time this case was decided. Contrary to the trial court's judgment, we find no words or phrases in the applicable versions of L.C.O. 1150.09(c)(73) or 1160.04 that would preclude an operation involved in the sale of goods from qualifying as a lawful "home occupation" in a residential district. While L.C.O. 1150.09(c)(73) and 1160.04 contain various requirements and conditions for an operation to qualify as a lawful "home occupation," there is no express restriction relating to the sale of goods. Applying the clear meaning of the words used in L.C.O. 1150.09(c)(73), we find the operation of Gun Galaxy can be reasonably construed as the appellants' "profession" or "occupation" within the definition of a "home occupation" under the ordinance.

{¶ 21} Our review of provisions relating to the sale of retail goods in other sections of the city's ordinances support our interpretation of L.C.O. 1150.09(c)(73) and 1160.04. L.C.O. 1169.06 governs the accessory use of home occupations in "mixed use overlay districts." Under L.C.O. 1169.06(c)(8)(D), individuals are prohibited from operating home occupations in mixed use overlay districts that are engaged in the "retail sales of goods that are not made on the premises." Significantly, no such restrictive language was present in L.C.O. 1160.04 at the time this case was decided.

{¶ 22} Under the statutory-construction maxim expressio unius est exclusio alterius (the express inclusion of one thing implies the exclusion of the other), the express reference to the restriction prohibiting home occupations in mixed use overlay districts from engaging in the sale of retail goods under L.C.O. 1169.06 indicates that the omission of such a restriction in L.C.O. 1160.04 was intentional. Thus, the language of the ordinances demonstrates a clear intent to treat home occupations in residential areas different from those located in mixed use overlay districts. In other words, we find nothing in L.C.O. 1160.04 to suggest that the city's ordinances intended to prevent home occupations in residential districts from selling retail goods. As the appellants argue, if the city's ordinances intended to impose such a restriction, it would have included the language set forth under L.C.O. 1169.06(c)(8)(D) in L.C.O. 1160.04.

{¶ 23} In addition, we find no merit to the trial court's reliance on case law from other districts that interpret the definition of "home occupation" in ordinances that contain more extensive restrictions or different language than the provisions set forth in L.C.O. 1150.09(c)(73) and 1160.04. As stated, we are guided by the language used in the ordinance disputed in this particular case.

{¶ 24} Based on the foregoing, we find the trial court erred in concluding that "the operation of a firearms sales dealership from a property zoned for residential use is not a home occupation under Lyndhurst's ordinances." In short, the trial court's finding is not supported by the broad definition of a "home occupation" set forth in L.C.O. 1150.09(c)(73). In the absence of express language prohibiting individuals from operating a home occupation engaged in the sale of goods in a residential district, this court's proverbial hands are tied. It appears the failure to include such prohibitive language in the applicable ordinance may have been an oversight. Nevertheless, we must apply the ordinance as it was written at the time this case was before the trial court, and cannot enforce restrictions that are not included therein.

{¶ 25} While we conclude that individuals are not expressly prohibited from selling goods in residential districts under the city's ordinances, the appellants are not entitled to judgment as a matter of law unless they demonstrate that no issues of material fact exist as to their compliance with the conditions of L.C.O. 1160.04(a)(4). In this case, the appellants assert that

Mr. Brobst, doing business as Gun Galaxy, clearly qualifies as a home occupation within the meaning of Section 1160.04(a)(4) in that in his occupation he is the sole employee; his occupation generates no outdoor storage of materials, equipment or vehicles; it occupies no more than twenty-five percent of the total ground floor area of the dwelling; the home occupation is conducted wholly within the dwelling; no equipment is used; no window display or signboard is used to advertise the occupation; and the home occupation does not change the residential character of the dwelling exterior.

{¶ 26} Because the trial court's judgment relied on terms or conditions not present in the applicable definition of a "home occupation," the court failed to analyze the evidence supporting the conditions set forth under L.C.O. 1160.04. Accordingly, we reverse the trial court's judgment and remand for consideration of the parties' competing affidavits to determine whether appellants' home operation of Gun Galaxy satisfies the accessory use conditions of L.C.O. 1160.04 as they existed at the time this case was initiated.

{¶ 27} Appellants' sole assignment of error is sustained.

B. The City's Appeal

{¶ 28} In its sole cross-assignment of error, the city argues the trial court erred in denying its motion to submit additional evidentiary materials.

{¶ 29} On April 25, 2017, the city filed a motion to submit additional evidentiary materials to support its motion for summary judgment. The city attempted to introduce an affidavit of the city's Chief of Police and photographs taken during the police investigation into a theft that occurred at appellants' home in April 2017. The city argued that the photographs taken inside the appellants' home "would have been submitted as evidence to show that appellants were operating a retail store at their residence."

{¶ 30} "The admission or exclusion of relevant evidence rests within the sound discretion of the trial court." State v. Sage , 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. An appellate court, therefore, generally reviews a trial court's decision pertaining to the admission of evidence for an abuse of discretion. State v. Gale , 8th Dist. Cuyahoga No. 94872, 2011-Ohio-1236, 2011 WL 915805, ¶ 12, citing State v. Finnerty , 45 Ohio St.3d 104, 107, 543 N.E.2d 1233 (1989). An abuse of discretion implies that the trial court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 31} In this case, the trial court set forth a schedule for dispositive motions. Pursuant to the schedule, the city was required to file its motion for summary judgment by March 24, 2017, and its reply brief by April 17, 2017. Under these circumstances, we are unable to conclude that the trial court abused its discretion by denying the city's motion to submit additional evidentiary materials. The court was well within its right to enforce its briefing schedule. In addition, there is no dispute that the appellants were engaging in the sale of firearms from their residential home. Photographs supporting this uncontested fact are irrelevant to the interpretation of the city's ordinances relating to the definition or lawful accessory use of a home occupation.

{¶ 32} The city's sole assignment of error is overruled.

{¶ 33} Judgment affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY;

PATRICIA ANN BLACKMON, J., DISSENTS WITH SEPARATE OPINION

{¶ 34} I respectfully dissent from the lead opinion and would conclude that Brobst is not engaged in a "home occupation" under Lyndhurst's codified ordinances. Accordingly, I would affirm the order of the trial court that granted summary judgment to Lyndhurst on Brobst's complaint and on Lyndhurst's first counterclaim.

{¶ 35} Brobst argues that in 2005, he met with:

Police Chief Andolfini, and as I recall, the Building Commissioner . I was informed that I would be permitted to operate the firearms dealership out of my home as long as I met four conditions [outlined within L.C.O. for home offices.] (Emphasis added.)

{¶ 36} In relevant part, the key provisions include:

L.C.O. 1150.09(c)(73):
"Home occupation" means an accessory use which is an activity, profession, occupation, service, craft or revenue enhancing hobby clearly incidental and subordinate to the use of the premises as a dwelling and is conducted entirely within the dwelling. * * * However, such home occupation shall be conducted in the dwelling[.] * * * no person shall be employed other than members of his or her immediate household an such home occupation shall not give rise to a nuisance * * * and shall not be otherwise detrimental to the district.
L.C.O. 1160.04(a)(4):
Professional offices and home occupations. Home occupations, as well as professional offices that provide an office in the home of a person practicing any of the recognized professions, including but not limited to accountant, architect, artist, clergyman, dentist, engineer, lawyer, physician, realtor, appraiser, photographer, planner or mental health counselor * * *, provided the following conditions are met:
A. No person shall be employed other than members of his or her immediate household;
B. The home occupations * * * generates no outside storage;
C. Such home occupation * * * occupies no more than twenty-five percent of the dwelling;
D. The home occupation * * * is conducted wholly in the dwelling.
E. No equipment is used which would create objectionable disturbances beyond the premises;
F. No window display or signboard is used[.]

{¶ 37} As an initial matter, I would note that the general allowance of "home professional offices" and other types of "home occupations" in residential zones arise from the fact that such uses were customary practices. Mack v. Bd. of Appeals, Town of Homer , 7 Misc.3d 607, 611, 790 N.Y.S.2d 361 (2005). "The doctor, dentist, lawyer, or notary has from time immemorial used his own home for his office, as has the dressmaker, milliner, and music teacher." Id. (Internal quotations omitted.) Retail gun sales do not appear to fit within this general framework.

{¶ 38} Furthermore, although Brobst asserts that he met with the chief of police, this official has no authority to approve building and zoning matters of this nature. Brobst also states, "as I recall [I also met with] the Building Commissioner." However, this statement lacks definitiveness. The city recognizes, that if it happened, the building commissioner does have some interpretive authority over zoning matters. However, there is no evidence of a letter, permit, or certificate containing an official determination on the matter, and no zoning board of review proceedings. Moreover, "[c]ourts have 'been loathe to apply doctrines of waiver, laches, or estoppel to governmental entities or arms thereof.' " State v. Tri-State Group , 7th Dist. Belmont No. 03 BE 61, 2004-Ohio-4441, ¶ 57, quoting Gold Coast Realty, Inc. v. Bd. of Zoning Appeals of Cleveland , 26 Ohio St.2d 37, 39, 268 N.E.2d 280 (1971).

{¶ 39} Finally, Brobst argued that he had "maintained inventory comparable to the inventory I have today for at least the past six years [2011]." The city's evidence demonstrated that Gun Galaxy's inventory has increased from the initial 2005 operation. From 2008 through 2011, Brobst bought and sold almost 3,000 firearms. Of this, 250 firearms were not sold and remained as inventory. From 2011 to 2014, he bought and sold over 4,000 firearms and 313 remained as inventory. He advertises online as a "store" with store hours and store policy. Therefore, it is doubtful to me that the operation of Gun Galaxy continues to be "incidental and subordinate to the use of the premises as a dwelling," as required under L.C.O. 1150.09(c)(73). Accordingly, I dissent.

      L.C.O. 1150.09(c)(3) defines an accessory use as "a subordinate use or building located on the same lot with, and customarily incidental to, the main use or building."