author: PATRICIA ANN BLACKMON, J.:

text:
    John P. ROBINSON, et al., Plaintiffs-Appellants v. MAYFIELD AUTO GROUP, L.L.C., et al., Defendants-Appellees
    No. 105844
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    November 30, 2017
    Sheila A. McKeon, Colleen A. Mountcastle, Melanie R. Irvin, Gallagher Sharp L.L.P., Bulkley Building, Sixth Floor, 1501 Euclid Avenue, Cleveland, Ohio 44115, ATTORNEYS FOR APPELLANTS
    Ann E. Knuth, Mansour Gavin L.P.A., North Point Tower, 1001 Lakeside Avenue, Suite 1400, Cleveland, Ohio 44114, David M. Neumann, David Neumann L.L.C., 2769 Commercial Road, (East Ninth Extension), Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEES
    BEFORE: Blackmon, J., McCormack, P.J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   PATRICIA ANN BLACKMON, J.:

{¶ 1} Plaintiff-appellant, John P. Robinson ("Robinson"), appeals from the order of the trial court granting the motion to stay proceedings pending arbitration filed by defendant-appellee Mayfield Auto Group, L.L.C., d.b.a. Nick Mayer Ford Lincoln ("Nick Mayer Ford"). Robinson assigns the following error for our review:

The trial court erred in granting [Nick Mayer Ford's] motion to stay proceedings as to the claims of John P. Robinson pending arbitration.

{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court's decision. The apposite facts follow.

{¶ 3} In September 2016, Robinson, the former controller for Nick Mayer Ford, and his coworker Eric Walker, filed a complaint against the dealership alleging breach of contract and unjust enrichment. As is relevant herein, Robinson alleged that he, Robinson, began his employment with Marshall Ford in 2005. In 2014, Marshall Ford was purchased by Nick Mayer Ford, and the terms of Robinson's employment were adopted by Nick Mayer Ford. Robinson alleged that under the terms of the Controller pay plan, he was entitled to a monthly base salary plus commissions in the amount of 1% of the dealership's net pre-tax profit, and payment for unused vacation. He alleged that he is entitled to accrued commissions in the amount of $11,459, past vacation payment in the amount of $5,192, and current vacation payment in the amount of $3,600.

{¶ 4} In its answer, Nick Mayer Ford denied liability and asserted that Robinson's claims were subject to a mandatory arbitration agreement that was part of his employment. Nick Mayer Ford also moved to stay the proceedings pending arbitration and attached a copy of the arbitration agreement, which states:

any and all claims or controversies between me and the COMPANY relating to my employment with the COMPANY or termination thereof including claims for breach of contract, tort, employment discrimination (including unlawful harassment) and any violation of any state or federal law shall be resolved by arbitration in accordance with the applicable National Rules for the Resolution of Employment Disputes of the American Arbitration Association.
* * *
If any party prevails on a statutory claim, which affords the prevailing party attorneys fees, then the arbitrator may award reasonable attorneys fees and costs to the prevailing party.
I understand and agree that this Arbitration Agreement contains a full and complete statement of any and all agreements and understandings regarding resolution of disputes between the COMPANY and me * * *.

{¶ 5} In opposition to the motion to stay, Robinson acknowledged that he signed the arbitration agreement but argued that the agreement was unsupported by consideration, and that it is unenforceable because it lacks mutuality and is unconscionable.

{¶ 6} On May 2, 2017, the trial court stayed Robinson's claims pending arbitration. Robinson now appeals.

Standard of Review

{¶ 7} Generally, questions concerning whether an arbitration agreement is enforceable or unconscionable are reviewed under a de novo standard of review. Hedeen v. Autos Direct Online, Inc. , 2014-Ohio-4200, 19 N.E.3d 957, ¶ 9 (8th Dist.), citing McCaskey v. Sanford-Brown College , 8th Dist. Cuyahoga No. 97261, 2012-Ohio-1543, 2012 WL 1142880, ¶ 7, and Taylor Bldg. Corp. of Am. v. Benfield , 117 Ohio St.3d 352, 353, 2008-Ohio-938, 884 N.E.2d 12. We give no deference to a trial court's decision when reviewing an issue de novo. Hedeen at ¶ 9, citing Brownlee v. Cleveland Clinic Found. , 8th Dist. Cuyahoga No. 97707, 2012-Ohio-2212, 2012 WL 1795273, ¶ 9.

{¶ 8} There is a presumption in favor of arbitration where the disputed issue falls within the scope of the arbitration agreement, "except upon grounds that exist at law or in equity for the revocation of any contract." DeVito v. Autos Direct Online, Inc. , 2015-Ohio-3336, 37 N.E.3d 194, ¶ 42 (8th Dist.) (en banc ); Conte v. Blossom Homes L.L.C. , 2016-Ohio-7480, 63 N.E.3d 1245, ¶ 13.

{¶ 9} In DeVito , this court explained that presumption as follows:

It is well settled that the arbitration process is a favored method to settle disputes. Both the Ohio General Assembly and the courts have expressed a strong public policy favoring arbitration. Hayes v. Oakridge Home , 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 15. Arbitration is favored because it provides the parties " 'with a relatively expeditious and economical means of resolving a dispute.' " Id. , quoting Schaefer v. Allstate Ins. Co. , 63 Ohio St.3d 708, 712, 590 N.E.2d 1242 (1992).

Id. at ¶ 12. Accord R.C. 2711.01(A) (an arbitration agreement in a written contract "shall be valid, irrevocable, and enforceable, except upon grounds that exist in law or equity for the revocation of any contract.").

{¶ 10} Under R.C. 2711.02(B), when a trial court determines that an arbitration provision is enforceable, the trial court shall on application of a party, stay the trial pending arbitration, unless arbitration has been waived.

{¶ 11} In the instant matter, Robinson argues that the arbitration provision is unenforceable for lack of mutuality of assent and consideration, and because it is unconscionable.

I. Enforceability

{¶ 12} Arbitration is a matter of contract. DeVito at ¶ 13, citing United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Thus, prior to making any determination regarding the arbitrability of any issue, a court must first determine whether the arbitration agreement is enforceable under basic contract precepts. Skerlec v. Ganley Chevrolet, Inc. , 8th Dist. Cuyahoga No. 98247, 2012-Ohio-5748, 2012 WL 6084030, ¶ 8, citing Council of Smaller Ents. v. Gates, McDonald & Co. , 80 Ohio St.3d 661, 665, 687 N.E.2d 1352 (1998).

{¶ 13} The elements of a contract are a voluntary offer, acceptance of the offer, and consideration. Butcher v. Bally Total Fitness Corp., 8th Dist. Cuyahoga No. 81593, 2003-Ohio-1734, 2003 WL 1785027, ¶ 28, citing Nilavar v. Osborn , 127 Ohio App.3d 1, 711 N.E.2d 726 (2d Dist.1998) ; Noroski v. Fallet , 2 Ohio St.3d 77, 79, 442 N.E.2d 1302 (1982). The "mutuality of obligation" doctrine requires only a quid pro quo or consideration. Frick v. Univ. Hosps. of Cleveland , 133 Ohio App.3d 224, 228, 727 N.E.2d 600 (8th Dist.1999). The Ohio Supreme Court has held that giving up a right to trial, in addition to the corresponding rights of that judicial process, is consideration. Hayes v. Oakridge Home , 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408, ¶ 42-43.

{¶ 14} In support of his contention that the arbitration agreement is unenforceable, Robinson relies on Harmon v. Philip Morris , 120 Ohio App.3d 187, 697 N.E.2d 270 (8th Dist.1997). In Harmon , the employer's alternative dispute resolution and arbitration programs required the employee, but not the employer, to submit claims to arbitration. The employer gave the employee the option of accepting the program or working elsewhere, and the employer also reserved the right to terminate the program at any time. The employee "acknowledged receipt of" pamphlets explaining the agreement. In concluding that the employee was not required to arbitrate his claim for wrongful termination, this court found no "acceptance" of the agreement, no mutuality, and no consideration.

A. Acceptance

{¶ 15} In undertaking its analysis, the Harmon court explained:

[T]he Restatement of the Law 2d, Contracts (1981), Section 17, which provides as follows:
"(1) * * * the formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration."
Section 22 provides:
"(1) The manifestation of mutual assent to an exchange ordinarily takes the form of an offer or proposal by one party followed by an acceptance by the other party or parties."

(Emphasis deleted.) Id. at 190, 697 N.E.2d 270.

{¶ 16} Therefore, as to the acceptance issue, this court noted that Harmon merely signed a document verifying that he had "received the information," but did not agree to the terms set forth in the program. Harmon, 120 Ohio App.3d at 191, 697 N.E.2d 270.

{¶ 17} Here, however, Robinson did not merely acknowledge receipt of the arbitration agreement. Rather, he specifically agreed that he "understand[s] and agree[s] that this Arbitration Agreement contains a full and complete statement of any and all agreements and understandings regarding resolution of disputes between the COMPANY and me[.]" Therefore, we find sufficient acceptance.

B. Mutuality of Assent

{¶ 18} Robinson argues that the arbitration agreement is unilateral, and the trial court erred in "summarily determining that there was mutual assent[.]"

{¶ 19} With regard to the mutuality of the assent and consideration, the Harmon court also noted that "the terms of this program require employees to arbitrate their claims against Philip Morris but do not similarly require Philip Morris to arbitrate its claims against them. 120 Ohio App.3d at 191, 697 N.E.2d 270.

{¶ 20} However, in Bell v. Hollywood Ent. , 8th Dist. Cuyahoga No. 87210, 2006-Ohio-3974, 2006 WL 2192053, this court distinguished Harmon and found sufficient mutuality of obligation where the employer was required to submit all claims to arbitration and could not alter or terminate the arbitration program. Accord Skerlec , 2012-Ohio-5748, 2012 WL 6084030. In Skerlec , both the employee and the dealership agreed to submit any unresolved complaint of "workplace wrongdoing" to arbitration and both parties agreed to give up their right to a jury trial in exchange for the other's similar promise. Id. at ¶ 12. This court agreed with the trial court's determination that the arbitration provision was enforceable in light of the mutual promises and consideration, and "[u]nlike Harmon and Post [v. ProCare Auto. Serv. Solutions , 8th Dist. Cuyahoga No. 87646, 2007-Ohio-2106, 2007 WL 1290091 ], there is nothing in the arbitration agreement that permits the employer to bypass arbitration." Id. at ¶ 13.

{¶ 21} In this matter, the arbitration agreement states:

any and all claims or controversies between me and the COMPANY relating to my employment with the COMPANY or termination thereof including claims for breach of contract, tort, employment discrimination (including unlawful harassment) and any violation of any state or federal law * * * shall be resolved by arbitration.

Therefore, because the agreement pertains to "all" claims and controversies, it governs both the employee's and employer's claims. Unlike Harmon and Post , there is no provision that allows the employer to use the judicial process. Therefore, the agreement is not void for lack of mutuality.

C. Consideration

{¶ 22} Robinson argues that there is insufficient consideration for the agreement because his employment was not contingent upon signing the arbitration agreement. He notes that Nick Mayer Ford took no action against his coworker Walker for failing to sign the agreement.

{¶ 23} With regard to consideration, the Harmon court noted:

[ Restatement (Second) of Contracts,] Section 17 provides:
"(1) To constitute consideration, a performance or a return promise must be bargained for.
"(2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.
"(3) The performance may consist of
"(a) an act other than a promise, or
"(b) a forbearance, or
"(c) the creation, modification, or destruction of a legal relation."

Harmon, 120 Ohio App.3d at 190, 697 N.E.2d 270.

{¶ 24} In finding insufficient consideration, the Harmon court explained:

[S]ince Philip Morris reserves the right to amend or terminate the program at any time, it has neither offered a benefit to employees nor incurred a detriment by modifying the terms of the employment relationship. Thus, no consideration flowed from the employer to the employees to compensate them for relinquishing their individual and collective rights to present their claims to a jury in a court of law because they remained at-will employees following implementation of the program, subject to termination but without the right to seek redress from a jury.

Id. at 191, 697 N.E.2d 270.

{¶ 25} However, in Skerlec , 2012-Ohio-5748, 2012 WL 6084030, this court found sufficient consideration. The Skerlec court noted that "[n]o consideration is required above and beyond the mutual agreement to arbitrate." Id. at ¶ 13, citing Corl v. Thomas & King , 10th Dist. Franklin No. 05AP-1128, 2006-Ohio-2956, 2006 WL 1629740, ¶ 20, citing Dantz v. Apple Ohio LLC , 277 F.Supp.2d 794 (N.D.Ohio 2003). The Skerlec court also noted that giving up a right to trial, in addition to the corresponding rights of that judicial process, is consideration. Id. at ¶ 9, citing Hayes , 122 Ohio St.3d 63, 2009-Ohio-2054, 908 N.E.2d 408 at ¶ 42-43.

{¶ 26} From the foregoing, the parties' agreement to arbitrate all disputes serves as consideration; consideration is not dependent upon the promise of continued employment. Further, in this matter, unlike Harmon, 120 Ohio App.3d at 187, 697 N.E.2d 270, and Post , 2007-Ohio-2106, 2007 WL 1290091, Nick Mayer Ford did not reserve the right to alter or terminate the plan. Rather, the parties mutually agreed to arbitrate "any and all claims or controversies." Therefore, we find sufficient consideration to support the mandatory arbitration agreement.

{¶ 27} In accordance with the foregoing, we conclude that the arbitration agreement contains the requisite elements of a valid, enforceable contract.

II. Unconscionability

{¶ 28} Unconscionability is a ground for revocation of a contract. Taylor Bldg. Corp. of Am., 117 Ohio St.3d 352, 2008 Ohio-938, 884 N.E.2d 12 at ¶ 32 ; R.C. 2711.01(A). Whether a particular contract or contract provision is unconscionable is a question of law subject to de novo review. Taylor Bldg. Corp. of Am. at ¶ 36 ; Devito, 2015-Ohio-3336, 37 N.E.3d 194 at ¶ 16 ; Martin v. Byke , 8th Dist. Cuyahoga No. 88878, 2007-Ohio-6816, 2007 WL 4442738, ¶ 25. The party claiming unconscionability bears the burden of proving that the contract or provision at issue is unconscionable. Taylor Bldg. Corp. of Am. at ¶ 33.

{¶ 29} In Martin , this court explained the concept of unconscionability as follows:

"Unconscionability is generally recognized to include an absence of meaningful choice on the part of one of the parties to a contract, combined with contract terms that are unreasonably favorable to the other party." Collins v. Click Camera & Video, Inc . (1993), 86 Ohio App.3d 826, 834, 621 N.E.2d 1294. "Unconscionability thus embodies two separate concepts: 1) unfair and unreasonable contract terms, i.e., 'substantive unconscionability,' and 2) individualized circumstances surrounding each of the parties to a contract such that no voluntary meeting of the minds was possible, i.e., 'procedural unconscionability * * *. These two concepts create what is, in essence, a two-prong test of unconscionability. One must allege and prove a 'quantum' of both prongs in order to establish that a particular contract is unconscionable." Id. , quoting White & Summers, Uniform Commercial Code (1988) 219, Section 4-7.
Substantive unconscionability concerns the actual terms of the agreement and whether the terms are unfair and unreasonable.
Collins, supra , at 834 [621 N.E.2d 1294]. Contract clauses are unconscionable where the "clauses involved are so one-sided as to oppress or unfairly surprise [a] party." Neubrander v. Dean Witter Reynolds, Inc. (1992), 81 Ohio App.3d 308, 311-312, 610 N.E.2d 1089.
Procedural unconscionability involves the circumstances surrounding the execution of the contract between the two parties and occurs where no voluntary meeting of the minds was possible. Collins, supra at 834 [621 N.E.2d 1294]. In determining procedural unconscionability, a court should consider factors bearing on the relative bargaining position of the contracting parties-including age, education, intelligence, business acumen, and experience in similar transactions-whether the terms were explained to the weaker party, and who drafted the contract. Id. , citing Johnson v. Mobil Oil Corp. , 415 F.Supp. 264, 268 (E.D.Mich. 1976).

Id. at ¶ 28-30 ; see also Devito at ¶ 14-20.

A. Substantive Unconscionability

{¶ 30} Robinson argues that the arbitration agreement is substantively unconscionable in accordance with this court's decision in Post v. ProCare Auto. Serv. Solutions , 8th Dist. Cuyahoga No. 87646, 2007-Ohio-2106, 2007 WL 1290091. He asserts that it required the employee, but not the employer, to submit his or her disputes to arbitration, did not disclose the costs, and that he "may end up spending a considerably higher amount of costs and fees in arbitration."

1. Lack of Mutuality as Basis of Unconscionability

{¶ 31} As noted in Post , 2007-Ohio-2106, 2007 WL 1290091, lack of mutuality can be a basis of unconscionability. Id. at ¶ 17.

{¶ 32} Here, however, as this court noted in the discussion of enforceability of the agreement, the arbitration agreement required arbitration of "any and all claims or controversies between me and the COMPANY relating to my employment with the COMPANY or termination thereof[.]" Therefore, we reject Robinson's claim of lack of mutuality.

2. Failure to Disclose Costs

{¶ 33} The arbitration agreement that the Post court found to be substantively unconscionable did not disclose the costs of arbitration or the fact that they may be substantially higher than costs associated with a regular court proceeding. Id. at ¶ 18. However, the plaintiff presented no evidence that the costs of arbitration would deter him from vindicating his rights in arbitration. Id. at ¶ 20. Similarly, in McCaskey , this court stated:

[A] failure to disclose the costs of arbitration did not make a provision per se unconscionable. [ Taylor, 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12] at ¶ 56-58, citing Green Tree Fin. Corp.-Alabama v. Randolph , 531 U.S. 79, 90-91, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). The Taylor court required specific and individualized evidence that arbitration costs were unduly burdensome to the party opposing it.
Here, just as in Taylor , there is no evidence that McCaskey would be prevented from prosecuting his claim in arbitration even though he did submit various fee schedules for the American Arbitration Association ("AAA") and the National Arbitration Forum ("NAF").

Id. , 2012-Ohio-1543, 2012 WL 1142880, at ¶ 32-33.

{¶ 34} Similarly, in this matter, there is no evidence that Robinson would be prevented from prosecuting his claim in arbitration.

{¶ 35} In accordance with the foregoing, we likewise reject the claim that the arbitration agreement is unconscionable for failing to disclose costs.

3. Costs of Arbitration Higher Than Litigation

{¶ 36} Robinson maintains that the costs of arbitration are higher than in the judicial forum and he "may end up spending a considerably higher amount of costs and fees in arbitration."

{¶ 37} The party complaining of the costs of arbitration bears the burden of showing the likelihood of incurring such costs. Felix v. Ganley Chevrolet Inc. , 8th Dist. Cuyahoga Nos. 86990 and 86991, 2006-Ohio-4500, 2006 WL 2507469, ¶ 21. The mere "risk" that a party will be saddled with prohibitive cost is too speculative to justify the invalidation of an arbitration agreement. Taylor Bldg. Corp. of Am., 117 Ohio St.3d 352, 2008-Ohio-938, 884 N.E.2d 12, at ¶ 57.

{¶ 38} Here, Robinson's assertion that he "may end up spending a considerably higher amount of costs and fees in arbitration" is too speculative to support the claim of unconscionability. Id. Further, Robinson's claim that the costs of arbitration are higher than in the judicial forum was insufficient to demonstrate that the cost of arbitration would operate to deter him or other similarly situated individuals from seeking to vindicate his statutory rights through arbitration.

{¶ 39} Further, the evidence presented herein concerning arbitration filing appears to place a greater cost burden upon the employer, and there is no basis upon which we can conclude that the arbitration costs and fees are prohibitive, unreasonable, or unfair as applied to Robinson, or that Robinson has been denied the opportunity for a hearing of his claims due to the costs. Accord Felix , 2006-Ohio-4500, 2006 WL 2507469, at ¶ 21.

B. Procedural Unconscionability

{¶ 40} Robinson next asserts that the arbitration agreement is procedurally unconscionable because it was drafted by Nick Mayer Ford and was not explained to Robinson. This court rejected similar claims in Pruitt v. Strong Style Fitness , 8th Dist. Cuyahoga No. 96332, 2011-Ohio-5272, 2011 WL 4842485, and stated:

immediately preceding Pruitt's signature is a paragraph in bold type stating that Pruitt read and understood the terms of the rules and regulations prior to signing. At that point, Pruitt was free to walk away from the contract if he did not like the terms proposed by Strong Style. See Wallace v. Ganley Auto Group , 8th Dist. Cuyahoga No. 95081, 2011-Ohio-2909 [2011 WL 2434093] [.]

Id. at ¶ 18. Accord Taylor Bldg. Corps. of Am. at ¶ 47. Accord Butcher , 8th Dist. Cuyahoga No. 81593, 2003-Ohio-1734, 2003 WL 1785027, at ¶ 35.

{¶ 41} In accordance with all of the foregoing, the assigned error is without merit.

{¶ 42} Judgment is affirmed.

TIM McCORMACK, P.J., and MELODY J. STEWART, J., CONCUR

      Walker is not a party to this appeal.


source: Caselaw Access Project

author: BRUNNER, J.

license: Public Domain

text:
    BMI FEDERAL CREDIT UNION, Plaintiff-Appellee, v. Maurice L. CHARLTON, Jr., Defendant-Appellee, and Evans Automotive Repair, Inc., Defendant-Appellant.
    No. 16AP-390
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on November 30, 2017
    On brief: Weltman, Weinberg & Reis Co., L.P.A., Amy C. Holbrook, and Daniel A. Friedlander, Cleveland, for appellee, BMI Federal Credit Union. Argued: Allen J. Reis, Grove City.
    On brief: Chieffo Law Office and Dominic J. Chieffo, Dublin, for Appellant. Argued: Dominic J. Chieffo.
    DECISION
   BRUNNER, J.

{¶ 1} Defendant-appellant, Evans Automotive Repair, Inc. ("Evans"), appeals a judgment of the Franklin County Court of Common Pleas entered on April 21, 2016, which granted summary judgment to BMI Federal Credit Union ("BMI") and denied to Evans a cross motion for summary judgment. Because we agree that the Ohio Revised Code provides that a lien properly recorded on an automobile title has priority over subsequent mechanics or artisan liens applied to the vehicle for non-payment of repair charges, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} This case commenced October 13, 2014 when BMI filed a complaint and a motion for an order of possession against Maurice L. Charlton, Jr. and Evans. Charlton was the titled owner of a 2004 Chrysler Pacifica and he was in default on the note for the purchase of the vehicle. Evans is a repair facility at which the Pacifica was abandoned by Charlton and which claimed an interest in the vehicle for unpaid repair and storage bills. (Oct. 13, 2014 Compl.; Title, Ex. B, Compl.; Oct. 13, 2014 Mot. for Possession.) On November 3, 2014, a representative of Evans responded pro se and requested a hearing. (Nov. 3, 2014 Req. for Hearing.) On November 11, 2014, Evans responded further, this time through counsel, with a memorandum arguing against the motion for possession. (Nov. 11, 2014 Memo. Contra Mot. for Possession.) Evans argued its lien on the Pacifica had priority over BMI's purchase lien noted on the automobile's title. Id. at 1.

{¶ 3} On November 12, the parties (except Charlton, who has never appeared in this case) argued the matter before a magistrate. (Nov. 12, 2014 Hearing Tr., filed June 17, 2016.) At the hearing, the parties stipulated to a number of factual matters which the magistrate accurately set forth in his written decision as follows:

1. Defendant Maurice Charlton, Jr. is currently the titled owner of a 2004 Chrysler Pacifica, Serial number 2C8GF68464R597947.
2. Defendant Maurice Charlton, Jr. executed a Loan Agreement And Consumer Credit Disclosure Statement with [BMI] on December 21, 2012, which is attached to the Complaint and Affidavit in Support of the Motion for an Order of Possession as Exhibit A and which was used to buy the motor vehicle. Pursuant to the Agreement, Defendant Maurice Charlton, Jr. gave [BMI] the remedy of the right of possession with regard to its security interest in the motor vehicle;
3. [BMI] has a valid lien and security interest in the vehicle as set forth in the affidavit filed by [BMI];
4. A replacement Certificate of Title with a lien notation indicating a lien in favor of [BMI] as of January 25, 2013, perfecting [BMI]'s security interest, was issued on September 18, 2014, and a true and accurate copy is attached to the Complaint and the affidavit in support of the Motion for an Order of Possession as Exhibit B;
5. Defendant Maurice Charlton, Jr. defaulted on his Agreement with [BMI];
6. Defendant Evans Automotive Repair, Inc. is in possession of the vehicle and has been in possession of the vehicle since January of 2014;
7. Defendant Evans Automotive Repair, Inc. did all of the things that it says it did on the invoice admitted at the hearing as Exhibit 1 with regard to the motor vehicle in question. Specifically, Defendant Evans Automotive Repair, Inc. checked out the engine of the car, charged it's [sic] battery, noted that it needed a valve job and has stored the vehicle from February 16, 2014 until November 3, 2014 at a cost of $2610.00;
8. Under Ohio law, there is the ability to create an artisan's lien such as the one Defendant Evans Automotive Repair, Inc. is claiming in this case.

(Nov. 13, 2014 Mag. Decision at 2-3.) As a factual matter, the magistrate concluded that BMI perfected its security interest in the vehicle on January 25, 2013, a year before Evans' work on the automobile. Id. at 3-4; see also Ex. B, Compl. ("REPLACEMENT" title issued on September 18, 2014, but noting a lien date of January 25, 2013).

{¶ 4} The magistrate then reasoned as follows:

9. With regard to the issue of priority of [BMI]'s perfected security lien and/or interest versus Defendant Evan's possessory and/or artisan's lien, Ohio courts have held that "[w]hen a creditor acquires a lien over property before a secured party perfects its security interest, the lien creditor will have superior rights to the property" under R.C. 1309.317(A)(2). Leesburg Fed. Sav. Bank v. McMurray , 12th Dist. CA2012-02-002, 2012-Ohio-5435 [2012 WL 5897608], ¶9. "However, when a secured party acquires an interest in a motor vehicle before a lien creditor and follows the requirements of R.C. 4505.13(B), the secured party will have superior rights to the vehicle under R.C. 4505.13(B)." Id. See also Commonwealth v. Berry , 2 Ohio St.2d 169 [207 N.E.2d 545] (1965). Consequently, as the Court noted in Leesburg Fed. , under Ohio law, the determination of the priority of the liens will depend upon who obtained and/or acquired a lien or a perfected security lien first. Id. at ¶9 ("if this court finds that Parrish obtained an artisan's lien over the vehicle before Leesburg's security interest, Parrish's interest will be superior to Leesburg's. Conversely, Leesburg's interest will prevail if Parrish is found not to have acquired an artisan's lien at all or if Parrish acquired its lien after Leesburg's security interest.").
10. The Magistrate finds, based upon the evidence and the stipulated facts in this case, that [BMI] is a secured party that acquired an interest in Defendant Maurice Charlton, Jr.'s car as of January of 2013, and [BMI] followed and complied with the requirements of R.C. 4505.13(B). The Magistrate finds, based upon the evidence and the stipulated facts in the case, that Defendant Evans Automotive Repair, Inc. became a possessory and/or artisan's lien creditor of Defendant Maurice Charlton, Jr. in February of 2014, a year after [BMI] followed and complied with the requirements of R.C. 4505.13(B) and, thus, perfected its security interest in the car. As a result, the Magistrate finds that [BMI]'s security interest in Defendant Charlton's motor vehicle is superior to the artisan's and/or possessory lien that Defendant Evans Automotive Repair, Inc. obtained over the vehicle.

(Mag. Decision at 7-8.)

{¶ 5} Evans timely objected to the magistrate's decision before the trial court, and BMI filed the requisite bond in anticipation of collecting the automobile. (Nov. 21, 2014 Bond; Nov. 26, 2014 Objs. to Mag. Decision; Dec. 8, 2014 Memo. Contra Objs.) Then, on December 11, 2014, Evans filed an answer to the original complaint and included a counterclaim against BMI alleging that Evans' lien on the vehicle had priority over BMI's and seeking to hold the vehicle until BMI paid all storage and repair bills for the automobile. (Dec. 11, 2014 Answer and Counterclaim at ¶ 17-26.) On July 6, 2015, the trial court overruled Evans' objections to the magistrate's decision and adopted it as its own. (July 6, 2015 Decision.) Based on that decision and a default judgment previously granted against Charlton for failure to defend, on July 13, 2015 the trial court entered judgment against Charlton and for BMI for $7,304.12 plus interest, permitting BMI the rights to attach and to take permanent possession of the vehicle from Evans. (July 13, 2015 Entry at 1-2.)

{¶ 6} Evans appealed but the appeal was dismissed on September 8, 2015, by agreement of the parties that the trial court's July 13, 2015 entry was not a final appealable order. (Sept. 8, 2015 Entry of Dismissal (filed with the trial court the next day, September 9, 2015).)

{¶ 7} On November 30, 2015, Evans moved for summary judgment on its counterclaim against BMI for its expenses regarding the Chrysler Pacifica and forfeiture of the bond posted in court by BMI. (Nov. 30, 2015 Mot. for Summ. Jgmt.) Approximately two months later, on February 5, 2016, BMI moved for summary judgment against Evans combined with a response to Evans' motion for possession. (Feb. 5, 2016 Mot. for Summ. Jgmt.) On February 16, Evans timely responded to BMI's summary judgment motion. (Feb. 16, 2016 Memo. Contra Summ. Jgmt.) The parties agreed that the facts were not in any essential dispute and focused instead on the legal question-whose lien had priority?

{¶ 8} On April 21, 2016, the trial court issued a decision denying Evans' motion for summary judgment and granting BMI's motion for summary judgment finding that BMI's prior lien, recorded on the face of the automobile title, had priority over Evans' later possessory or artisan lien. (Apr. 21, 2016 Decision at 5-6.)

{¶ 9} Evans now appeals.

II. ASSIGNMENT OF ERROR

{¶ 10} Evans assigns a single error for review:

THE TRIAL COURT ERRD [sic] IN FINDING THAT A PRIOR PERFECTED SECURITY INTEREST IN A MOTOR VEHICLE TAKES PRIORITY OVER AN ARTISANS [sic] POSSESSORY LIEN OF AN AUTOMOTIVE REPAIR FACILITY.

III. DISCUSSION

{¶ 11} Our review on summary judgment is de novo. State Farm Mut. Auto. Ins. Co. v. Advanced Impounding & Recovery Servs. , 165 Ohio App.3d 718, 2006-Ohio-760, 848 N.E.2d 534, ¶ 8 (10th Dist.) Ohio statutory and common law provide that an artisan who invests his or her work in a chattel may obtain a lien upon the chattel to secure the payment obligation relating to the work. R.C. 1333.41 ; R.C. 1309.333 ; Commonwealth Loan Co. v. Berry , 2 Ohio St.2d 169, 207 N.E.2d 545 (1965). But the statutory lien available to bailees for hire is, by its own terms, inapplicable to motor vehicles. R.C. 1333.41(E). Thus, only under common law, could an "artisan" (or, to use the modern term, "possessory") lien be found if at all in this case. A discussion of this law follows.

{¶ 12} Generally a "possessory lien on goods has priority over a security interest in the goods unless the lien is created by a statute that expressly provides otherwise." R.C. 1309.333(B). Since no statute creates the common law possessory lien being asserted in this case (because R.C. 1333.41 is inapplicable to motor vehicles), the general rule that a "possessory lien on goods has priority over a security interest in the goods" would seem to control the outcome of the case. R.C. 1309.333(B). However, specifically with respect to automobiles, another statute provides that "any security agreement covering a security interest in a motor vehicle, if a notation of the agreement has been made by a clerk of a court of common pleas on the face of the certificate of title * * *, is valid as against the creditors of the debtor, whether armed with process or not, and against subsequent purchasers, secured parties, and other lienholders or claimants." R.C. 4505.13(B). This presents an apparent conflict between R.C. 4505.13(B) and 1309.333(B).

{¶ 13} But the Supreme Court of Ohio has essentially decided this conflict. In 1965, it held that the specific controls over the general statute concerning the predecessor statute of R.C. 1309.333(B), i.e., former R.C. 1309.29 :

Section 1309.29, Revised Code * * * provides:
"When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise."
The lien referred to in Section 1309.29, Revised Code, is the artisan's lien. The artisan's lien prior to the enactment of Section 1333.41, Revised Code, was a common-law lien. That section makes the artisan's lien a statutory lien but expressly excludes motor vehicles from its operation. It follows that the artisan's lien to the extent that it affects motor vehicles is still a common-law lien and, hence, does not fall within the exception in Section 1309.29, Revised Code.
The language of Section 4505.13, Revised Code, specifically makes a security agreement conveying a security interest in an automobile, if a notation of such instrument has been made by the Clerk of the Court of Common Pleas on the face of the certificate of title, valid against other lienholders.
There is an apparent conflict as to the priority of the liens under the subject statutes. However, the General Assembly by expressly eliminating motor vehicles from the provisions of Section 1333.41, Revised Code, by expressly excepting motor vehicles from the required filing to protect a security interest in Section 1309.21 (C) 2, Revised Code, and by the amendments of Section 4505.13, Revised Code, the specific statute which deals with motor-vehicle liens and which states that a lien noted upon the certificate shall be valid against other liens, has made it clear that the enactment of the Uniform Commercial Code was not intended to alter the well established law of Ohio as to the priority of liens upon motor vehicles.
A special statutory provision which relates to a specific subject matter is controlling over a general statutory provision which might otherwise be applicable. Andrianos v. Community Traction Co. , 155 Ohio St. 47 [97 N.E.2d 549 (1951) ].
We conclude, as did the Court of Appeals, that the specific priority provided in Section 4505.13, Revised Code, prevails over the general provision of Section 1309.29, Revised Code.

Berry at 169-70, 207 N.E.2d 545.

{¶ 14} With the passage of legislation to repeal R.C. 1309.29 and to enact R.C. 1309.333(B), Evans argues that Berry no longer applies. But our comparison of the former with the current statute shows similarity in the salient language between each of them. The former statute read as is quoted by the Supreme Court in Berry :

When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.

(Emphasis added.) Berry at 169-70, 207 N.E.2d 545. Current R.C. 1309.333 contains this language:

(A) As used in this section, "possessory lien" means an interest, other than a security interest or an agricultural lien:
(1) That secures payment or performance of an obligation for services or materials furnished with respect to goods by a person in the ordinary course of the person's business;
(2) That is created by statute or rule of law in favor of the person; and
(3) Whose effectiveness depends on the person's possession of the goods.
(B) A possessory lien on goods has priority over a security interest in the goods unless the lien is created by a statute that expressly provides otherwise.

(Emphasis added.) R.C. 1309.333.

{¶ 15} Despite the slight variations in wording, we interpret that the statutes similarly require that a possessory lien obtained by someone "furnish [ing]" "services or materials" "with respect to goods" in "the ordinary course of * * * business" has "priority over" a "security interest" unless the lien is "statutory" (or "created by statute") and the statute "expressly provides otherwise." R.C. 1309.333 and former R.C. 1309.29 (1962). Though this Court has not previously addressed this exact issue, the Twelfth District Court of Appeals has already expressed this analysis:

In Berry , the Supreme Court found that the statute governing a security interest in a motor vehicle, R.C. 4505.13, prevails over the statute governing the priority of artisan's liens, R.C. 1309.29. Since Berry , R.C. 1309.29 has been repealed and R.C. 1309.333, which governs the priority of possessory liens, was adopted. Although Berry discussed the interaction between R.C. 1309.29 and R.C. 4505.13, we find that Berry is still applicable to the case at bar as R.C. 1309.333 is substantially similar to R.C. 1309.29.

Leesburg Fed. Sav. Bank v. McMurray , 12th Dist. No. CA2012-02-002, 2012-Ohio-5435, 2012 WL 5897608, ¶ 9, fn. 3. Additionally, Berry has been cited after R.C. 1309.29 was repealed and R.C. 1309.333 was enacted, without any suggestion that it was superseded by the change in statute. See Alb United States Auto, Inc. v. Modic , 8th Dist. No. 98914, 2013-Ohio-1561, 2013 WL 1697357, ¶ 23 (E. Gallagher, J. dissenting); Leesburg at ¶ 9-14 ; State v. Ames , 182 Ohio App.3d 736, 2009-Ohio-3509, 914 N.E.2d 1118, ¶ 14 ; Mannix v. DCB Serv. , 2d Dist. No. 19910, 2004-Ohio-6672, 2004 WL 2848921, ¶ 28.

{¶ 16} Evans further argues that it is "common sense" that an artisan or possessory lien should have priority over a purchase lien noted on a vehicle's certificate of title. (Evans Brief at 10.) Evans argues no shop would work on an automobile if the shop would not be the first secured creditor and could be preempted by the lienholder who lent the money to purchase the car. Id. A secured loan for a motor vehicle for which there is a publicly ascertainable record does not lose priority to a later security interest taken by a repair shop that could have learned whether there existed a prior lien before performing the repair and storing the vehicle. Berry was decided in 1965, and somehow, shop owners apparently have been finding "common sense" ways to deal with the law since then. Moreover, the Ohio Revised Code specifies how a vehicle repair shop may take title to an unclaimed vehicle after "caus[ing] a search to be made of the records of the bureau of motor vehicles" to "identify any owner or lienholder" and give notice to the lienholder. R.C. 4505.101(A)(1).

{¶ 17} BMI's lien was noted on the face of the certificate of title. (Ex. B, Compl.) The notation indicated the lien was as of January 25, 2013. (Mag. Decision at 3 (stipulation of the parties); see also Ex. B, Compl. ("REPLACEMENT" title issued on September 18, 2014 but noting a lien date of January 25, 2013).) Evans' possession of the automobile did not begin until approximately one year later in January 2014. (Mag. Decision at 3 (stipulation of the parties).) BMI's lien has priority and BMI was entitled to summary judgment. Accordingly, we overrule Evans' sole assignment of error and affirm the trial court.

IV. CONCLUSION

{¶ 18} BMI's lien was perfected, noted on the face of the title, and thus, as a matter of statute and case law, took priority over the subsequently acquired common law artisan lien held by Evans. Evans' sole assignment of error is overruled and we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

KLATT and LUPER SCHUSTER, JJ., concur.


author: DONOVAN, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Lance DYER, Defendant-Appellant
    NO. 27384
    Court of Appeals of Ohio, Second District, Montgomery County.
    December 1, 2017
    AMY B. MUSTO, Atty. Reg. No. 0071514, Assistant City Prosecutor, 335 W. Third Street, Room 372, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee
    MISTY M. CONNORS, Atty. Reg. No. 0075457, 3451 Dayton-Xenia Road, P.O. Box 34246, Beavercreek, Ohio 45434, Attorney for Defendant-Appellant
   DONOVAN, J.

{¶ 1} Defendant-appellant Lance Dyer was convicted after a jury trial in the Dayton Municipal Court of menacing, a misdemeanor of the fourth degree. Dyer appeals from his conviction, claiming that the trial court abused its discretion in precluding him from presenting evidence of alleged prior false allegations by the complainant and in excluding a defense witness as a discovery sanction. For the following reasons, the trial court's judgment is affirmed.

I. Background and Procedural History

{¶ 2} According to the State's evidence at trial, Cassandra Porter, the complainant, and Dyer were married for 12 years. They have three children. During the relevant time period, the couple's two sons were 17 and 15 years old and their daughter was 8 years old. Porter also has two adult daughters from a prior relationship. Porter and Dyer divorced several years ago. In 2016, Porter was the custodial parent, and Dyer had visitation rights for the couple's children.

{¶ 3} In May 2016, Porter contacted Dyer by text message to invite him to attend her 19-year-old daughter's high school graduation and their middle child's graduation from middle school to high school. Dyer attended the high school graduation, but did not attend the middle school graduation. Dyer texted Porter that he would not be exercising his visitation rights that weekend, and he would let Porter know when he could next see the children. (Copies of the text messages between Porter and Dyer were admitted as State's Exhibits 1-4.) Dyer did not attempt to see his children for the rest of May, all of June, and part of July.

{¶ 4} In July 2016, Dyer purchased a bicycle for the couple's youngest child, and he delivered the bicycle to the home of Porter's mother, Renzola Cunningham. Cunningham and Porter believed that the bicycle was too large for the child, and on July 12, Porter texted Dyer to pick up the bicycle and to take their daughter to the store to purchase an appropriately-sized bike.

{¶ 5} On the morning of July 18, 2016, Dyer replied to Porter that he wanted to see his children on the upcoming Friday and that he would take Porter to court if necessary. Porter became upset at Dyer's suggestion that he would need to go to court to see his children, given that he had elected not to exercise his visitation since May; Porter responded that she would think about letting the children come over. At approximately 6:00 p.m. that evening, Porter texted Dyer that he needed to retrieve the bicycle from her mother's house "asap." (Copies of the July text messages were admitted as Defendant's Exhibits 1-3.)

{¶ 6} Dyer drove to Cunningham's home on the evening of July 18, 2016. Cunningham, Porter, and the couple's 15-year-old and 8-year-old children were there when Dyer arrived. Porter testified that Dyer appeared to be intoxicated. Dyer initially spoke with his children while Porter sat on the front porch. Dyer then asked Porter if their 15-year-old son could drive his car;

Porter said no, because their son did not have a temporary driver's license. Over Porter's objections, Dyer permitted their son to drive his car for approximately ten minutes.

{¶ 7} An argument ensued after Dyer and the son returned. Porter told her son to go in the yard with his younger sister. As the argument escalated, Porter told her son to take his sister inside the house.

{¶ 8} Porter testified that Dyer ultimately stated that he "was gonna kick [her] ass and he was gonna come over to [her] house with his piece and shoot [her]." (Tr. at 48.) Cunningham likewise testified that she heard Dyer say that "he was gonna get a gun and he was gonna come back and whip her ass and he was gonna take the kids." (Id. at 80.) Porter testified that she believed Dyer's threats, because of "the nature of how he threatened me and how he was looking when he said what he said to me." (Id. at 49.)

{¶ 9} After Dyer threatened her, Porter called the police. (The 911 call, Defendant's Exhibit 4, was played for the jury.) Cunningham, who had heard the threat, yelled at Dyer and told him to leave. Dyer left after approximately five or ten minutes, before the police responded. After the police arrived and Porter made a report, Porter took her children home. She testified that she stayed up all night in her living room, in case Dyer came over.

{¶ 10} On July 20, 2016, Dyer was charged by complaint with aggravated menacing, a first-degree misdemeanor, and menacing, a fourth-degree misdemeanor. Dyer pled not guilty and demanded a jury trial. The trial court's original pre-trial order, entered on August 31, 2016, set a discovery deadline of September 7, required the parties to file witness lists by September 22, and scheduled the trial for October 7. On September 7, 2016, Dyer filed a motion for an extension of the discovery deadline to September 21, 2016. The trial court granted the motion. On September 23, the State filed a motion to extend the discovery deadline to September 30. The court also granted this motion.

{¶ 11} On September 23, 2016, Dyer filed a motion in limine, seeking a ruling that evidence of Porter's prior domestic violence protection order complaints against Dyer, all of which were resolved by dismissal or a judgment in Dyer's favor, were admissible at trial. Dyer asserted that the evidence was admissible under Evid.R. 608(B) and/or Evid.R. 616(A). The State opposed the motion and sought to prohibit counsel and witnesses from mentioning the prior allegations.

{¶ 12} The State filed its witness list on September 30, 2016. On October 3, a pretrial conference was held. Because of an error in summoning potential jurors for the trial, the court rescheduled the jury trial for October 14, 2016.

{¶ 13} On October 4, 2016, the trial court overruled Dyer's motion in limine, finding that "the proposed evidence, at this time, does not indicate false allegations or bias, prejudice, or motive for misrepresentation on the part of the Complaining Witness." The court ordered that the proposed evidence not be admitted and that there "be no reference to the proposed evidence during voir dire, opening statements, or at any time until after the State has completed their examination of the Complaining Witness." The court further ordered that, "[s]hould it become apparent after the examination of the Complaining Witness that any of the proposed evidence should be allowed, a sidebar shall be requested, the Jury excused, and a ruling made as to which evidence may be admitted and used for cross-examination."

{¶ 14} On October 5, 2016, Dyer filed a motion to file his witness list out of time, requesting permission to file his witness list by October 11, 2016. The motion included a witness list naming Dyer's two teenaged sons and Keisha Jackson; the witness list did not indicate the nature of Jackson's testimony or her relationship to Dyer. A subpoena was issued for Jackson on October 7. On October 11, the State objected to the untimely notice of witnesses, asserting that it did not receive notice of Dyer's intended witnesses until October 10, and that it would not have a meaningful opportunity to investigate or interview Jackson (who was unknown to the State) or Dyer's oldest son (who was not at his grandmother's house on July 18, 2016) prior to trial.

{¶ 15} On October 13, 2016, an acting judge found the State's objection to Dyer's witnesses to be well-taken. The court's entry indicated that the court had discussed the matter with counsel, and that counsel was told that the witnesses filed out-of-time would not be allowed to testify at the October 14 trial. The entry further indicated that Dyer could request a continuance if the witnesses were crucial to his defense. Dyer was given a deadline of October 12 to request a continuance. No continuance was requested.

{¶ 16} The matter proceeded to trial before the acting judge on October 14, 2016. After a jury was selected, but before opening statements, the State reminded the court that a defense witness had been excluded due to the untimeliness of Dyer's revealing the witness's identity, and the prosecutor described the prior off-the-record discussions between counsel and the trial court regarding that witness. Dyer reiterated his objection to the trial court's ruling on that issue. Dyer also reiterated his objection to the trial court's ruling on his motion in limine regarding Porter's prior accusations against him. The trial court reaffirmed its prior rulings. At that time, Dyer proffered the evidence that would have been presented regarding Porter's prior allegations against him. A proffer of Jackson's testimony occurred prior to closing statements.

{¶ 17} At trial, the State presented two witness-Porter and Cunningham. Their testimony, detailed above, indicated that Porter and Dyer had argued at Cunningham's residence on July 18, 2016, and that Dyer had threatened Porter. Dyer presented two defense witnesses-himself and the couple's 15-year-old son. The son testified that his father (Dyer) came to get his sister's bike, that Dyer asked him if he wanted to drive Dyer's car, and that he drove the car around the block. The son testified that, after returning to the house, Dyer put the bike in his car and his parents started to argue. The son did not hear his father threaten his mother on July 18, and he testified that he has never seen his father with a gun. Dyer testified that Porter was upset that he had tried to teach their daughter how to ride the bike, and he stated that Porter did not object to their son's driving his car until after he and the son returned. Dyer denied that he was intoxicated and that he had threatened Porter.

{¶ 18} After deliberations, the jury found Dyer guilty of menacing, but not guilty of aggravated menacing. The court ordered a presentence investigation (PSI).

{¶ 19} On November 28, 2016, the trial court orally sentenced Dyer to 30 days in jail (all of which were suspended) and a $250 fine (all of which was suspended), and ordered him to pay court costs. Dyer was placed on probation for one year and ordered to attend anger management classes and parenting classes, to obtain a drug and alcohol assessment/treatment, and to have no contact with Porter, except as necessary regarding their children. The trial court's judgment entry was filed on December 1, 2016. The trial court stayed Dyer's sentence pending the outcome of his appeal.

{¶ 20} Dyer appeals from his conviction, raising two assignments of error.

II. Exclusion of Prior False Allegations by Complainant

{¶ 21} Dyer's first assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING EVIDENCE OF THE COMPLAINING WITNESS'S PRIOR TESTIMONY AND PRIOR UNSUBSTANTIATED COMPLAINTS ABOUT THE DEFENDANT.

{¶ 22} Dyer sought to introduce documents from five separate domestic violence protection order cases filed by Porter against Dyer. Specifically, he sought to introduce:

• Montgomery C.P. No. 2001 DV 591
• the ex parte domestic violence protection order issued in favor of Porter and against Dyer (July 23, 2001) (Exhibit 5)
• Porter's motion to dismiss the case (Aug. 9, 2001) (Exhibit 6)
• the trial court's dismissal entry for want of prosecution (Sept. 4, 2001) (Exhibit 6)
• Montgomery C.P. No. 2013 DV 389
• the ex parte domestic violence protection order issued in favor of Porter and against Dyer (Apr. 9, 2013) (Exhibit 7)
• the trial court's dismissal entry, based on Porter's consent to termination of the protection order (Apr. 23, 2013) (Exhibit 8)
• Montgomery C.P. No. 2013 DV 791
• the ex parte domestic violence protection order issued in favor of Porter and against Dyer (July 5, 2013) (Exhibit 9)
• the trial court's dismissal entry after a full hearing, finding that Dyer "credibly denie[d] calling and threatening [Porter]" and concluding that Porter had failed to prove that Dyer had committed domestic violence (Aug. 7, 2013) (Exhibit 10)
• Montgomery C.P. No. 2013 DV 1261
• the ex parte domestic violence protection order issued in favor of Porter and against Dyer (Oct. 9, 2013) (Exhibit 11)
• a transcript of the ex parte hearing (Oct. 9, 2013) (Exhibit 12)
• the trial court's dismissal entry, sustaining Dyer's objections to the magistrate's ruling and dismissing case for lack of evidence of domestic violence (Jan. 29, 2014) (Exhibit 13)
• Montgomery C.P. No. 2015 DV 1374
• the ex parte domestic violence protection order issued in favor of Porter and against Dyer (Nov. 2, 2015) (Exhibit 14)

With the exception of the 2001 case, all of the domestic violence protection order cases were filed after Dyer and Porter separated.

{¶ 23} On appeal, Dyer claims that the trial court abused its discretion when it excluded evidence of Porter's prior allegations against him. Citing Evid.R 608(B), Dyer argues that he should have been permitted to present evidence of Porter's prior false accusations to demonstrate her untruthfulness. Dyer further claims that the same evidence was admissible, pursuant to Evid.R. 616, to demonstrate Porter's bias against him. Dyer primarily relies on State v. Fredrick , 2d Dist. Montgomery No. 18996, 2002 WL 360643 (Mar. 8, 2002), which he claims is nearly identical to the facts before us.

{¶ 24} Trial courts have discretion over the admission or exclusion of evidence, and we review the court's decision for abuse of discretion. State v. Sage , 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus. "A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary. An abuse of discretion includes a situation in which a trial court did not engage in a 'sound reasoning process.' Abuse-of-discretion review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court." State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

{¶ 25} Evid.R. 608(B) provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, other than conviction of crime as provided in Evid.R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

Evid.R. 608(B). Evid.R. 616, which addresses methods of impeachment, further provides that "[b]ias, prejudice, interest, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by extrinsic evidence." Evid.R. 616(A).

{¶ 26} Beginning with Dyer's arguments related to Evid.R. 608(B), Evid.R. 608(B) expressly prohibits the introduction of extrinsic evidence of specific instances of conduct to attack or support a witness's credibility, with the exception of criminal convictions under Evid.R. 609. Accordingly, the trial court correctly excluded Dyer's proffered documents themselves. However, because the trial court also precluded any reference to the exhibits unless it "became apparent after examination of [Porter] that any of the proposed evidence should be allowed," we focus on whether Dyer should have been permitted to cross-examine Porter about her prior allegations.

{¶ 27} We addressed the use of a witness's prior allegations against a defendant for impeachment in Fredrick , 2d Dist. Montgomery No. 18996, 2002 WL 360643 (Mar. 8, 2002). In that case, the defendant was charged with domestic violence, and at trial, he attempted to offer evidence of a psychologist who, according to the defendant's proffer, would have testified that the complainant, Fredrick's estranged wife, had said that the domestic violence charge was fabricated. The trial court also did not permit the defendant to cross-examine his wife with questions that were intended to elicit that she had previously made false charges of domestic violence against him. The jury convicted the defendant of domestic violence, and he appealed.

{¶ 28} On review, we concluded that the statements of the psychologist were privileged, and we affirmed the exclusion of the psychologist's testimony. However, we held that the trial court erred when it sustained objections to questions intended to elicit from the complainant that she had previously made false charges of domestic violence, reasoning that "[t]his testimony would be relevant and admissible to show the bias of the witness, as well as her credibility." We stated:

A defendant is permitted under Evid.R. 608(B) in the court's discretion, to cross-examine a victim regarding false accusations if they are clearly probative of truthfulness or untruthfulness.
State v. Boggs (1992), 63 Ohio St.3d 418, at 421, 588 N.E.2d 813. Although the decision whether to permit cross-examination of a victim regarding false accusations is left to the trial court's discretion, that discretion is not absolute. We cannot know whether Fredrick's attorney would have succeeded in her attempt to establish, in her cross-examination of Ms. Fredrick, that Ms. Fredrick had made false accusations of Domestic Violence against Mr. Fredrick in the past. We conclude, however, that the trial court abused its discretion by preventing Fredrick's attorney from pursuing this line of questioning. If it could have been shown that the complainant had made false accusations of Domestic Violence against Fredrick in the past, that would have been highly probative of her truthfulness or untruthfulness with respect to the present charge of Domestic Violence. Although the parties do not argue the point, Ms. Fredrick's prior false accusations against her husband, if shown, would also have been admissible to show her bias, prejudice, interest, or motive to misrepresent, pursuant to Evid.R. 616(A).

Fredrick , at ¶ 3.

{¶ 29} The First District followed Fredrick in State v. Husseln , 152 Ohio App.3d 67, 2003-Ohio-1369, 786 N.E.2d 536 (1st Dist.), concluding that the trial court had erred in refusing to admit evidence of five prior charges of domestic violence by the complainant (the defendant's ex-wife) that had resulted in either dismissals or aquittals. Husseln at ¶ 7-9.

{¶ 30} We distinguished Fredrick and Husseln in State v. Hunt , 2d Dist. Greene No. 2013-CA-79, 2014-Ohio-3839, 2014 WL 4384140. In Hunt , a jury found the defendant guilty of violating a protection order. On appeal, Hunt claimed that he was denied a full, effective cross-examination when the trial court prohibited his counsel from questioning the complainant about the outcome of prior allegations she made against him for criminal trespass and telephone harassment. Specifically, Hunt argued that, after the complainant admitted to making the prior complaints, the trial court erred in disallowing, as irrelevant, defense counsel from asking if those allegations had been dismissed.

{¶ 31} In addressing Hunt's assignment of error, we noted that Fredrick and Husseln dealt with false prior accusations, which were "clearly probative of the victim's untruthfulness." Hunt at ¶ 28. In contrast, Hunt's trial counsel was attempting to cross-examine the complainant on her character for truthfulness or untruthfulness by eliciting evidence showing that her prior charges were dismissed. Id. We explained the distinction between those circumstances, stating:

The dismissal of a witness's prior charges, however, is not clearly probative of the witness's character for truthfulness or untruthfulness, as charges can be dismissed for many reasons other than being unfounded. Asking [the complainant] whether her prior allegations were dismissed because they were determined to be false would have been appropriate under the rule, as that would be clearly probative of truthfulness or untruthfulness. However, that is not what counsel asked, and that is not what he told the trial court he was going to elicit. We further note that the docket in [the prior case] indicates that the telephone harassment and criminal trespass case was settled at a hearing and resulted in a disposition of not guilty. Again, that outcome is not clearly probative of [the complainant's] truthfulness or untruthfulness, as it does not necessarily indicate her allegations were false.

Hunt at ¶ 29.

{¶ 32} Upon review of Fredrick , Hunt , and additional relevant case law, we conclude that the trial court did not abuse its discretion in determining that the proffered evidence was not admissible under Evid.R. 608(B). First, we agree with the trial court's decision to exclude evidence related to Montgomery C.P. No. 2001 DV 591 and Montgomery C.P. No. 2013 DV 389. The bases for the dismissal of those cases were lack of prosecution and Porter's consent to dismiss, respectively. As we stated in Hunt , charges can be dismissed for many reasons other than being unfounded, and neither of the bases in Montgomery C.P. No. 2001 DV 591 and Montgomery C.P. No. 2013 DV 389 reflects an indicia of untruthfulness. We likewise find no error in the trial court's exclusion of evidence regarding Montgomery C.P. No. 2015 DV 1374, for which we have only the ex parte complaint. The record contains no suggestion that Porter's allegations in that case were untruthful.

{¶ 33} Whether Dyer should have been permitted to question Porter about her prior allegations in Montgomery C.P. No. 2013 DV 791 and Montgomery C.P. No. 2013 DV 1261 presents a more difficult question. In both cases, the trial court determined that Porter had failed to establish domestic violence by Dyer and dismissed the complaints. Specifically, in Montgomery C.P. No. 2013 DV 791, the magistrate concluded that Dyer had credibly denied calling and threatening Porter, and in Montgomery C.P. No. 2013 DV 1261, the trial court concluded that the text messages allegedly sent to Porter by Dyer "[did] not reach the level of a threat of imminent serious physical harm."

{¶ 34} Unlike in Fredrick , however, where the complainant had previously admitted to fabricating a charge of domestic violence against her husband, nothing in Dyer's proffered evidence indicates that Porter admitted to fabricating her allegations. In Montgomery C.P. No. 2013 DV 1261, the court made no comment about Porter's credibility. Rather, the court found that she did not support her allegations that Dyer had sent threatening text messages (no messages were admitted into evidence), and the court simply found that her allegations, even if true, did not meet the legal standard for domestic violence. Nothing suggests that her allegations were actually false and that Dyer did not engage in the alleged conduct. Accordingly, in this case, the trial court did not abuse its discretion in excluding evidence related to Porter's allegations in Montgomery C.P. No. 2013 DV 1261.

{¶ 35} Finally, unlike Montgomery C.P. No. 2013 DV 1261, the court addressed the relative credibility of Porter and Dyer in Montgomery C.P. No. 2013 DV 791. Because the court found Dyer more credible in that case, the trial court here could have reasonably permitted Dyer to question Porter about her prior allegation in that case. Nevertheless, we cannot conclude that the trial court abused its discretion when it precluded the admission of evidence regarding Porter's allegations in Montgomery C.P. No. 2013 DV 791. The trial court could have also reasonably concluded that the judgment in Dyer's favor, alone, did not establish the falsity of Porter's allegations and thus was not "clearly probative of truthfulness or untruthfulness." Evid.R. 608(B). Where the trial court can reasonably reach different conclusions regarding the admissibility of evidence, we cannot substitute our judgment for that of the trial court, even if we might disagree with the trial court's determination.

{¶ 36} Additionally, the trial court did not err in excluding the evidence under Evid.R. 616(A). We recognize that, " '[b]ecause the possible bias of a witness is always significant in assessing credibility, the trier of fact must be sufficiently informed of the underlying relationships, circumstances, and influences operating on the witness * * *.' " State v. Watson , 2015-Ohio-4517, 46 N.E.3d 1090, ¶ 43 (2d Dist.), quoting State v. Williams , 61 Ohio App.3d 594, 597, 573 N.E.2d 704 (9th Dist.1988). In this case, however, the jury was aware from the witnesses' testimony that Porter and Dyer were divorced; Dyer and Porter's text messages and testimony, as well as Cunningham's testimony, suggested that their relationship was acrimonious. Considering the known relationship between the parties, the trial court did not abuse its discretion in concluding that the prior domestic violence protection order proceedings should not be admitted under Evid.R. 616(A), in the absence of evidence that the prior allegations were false.

{¶ 37} Dyer's first assignment of error is overruled.

III. Exclusion of Defense Witness as Discovery Sanction

{¶ 38} Dyer's second assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING THE DEFENSE'S EYE WITNESS [SIC] FROM TESTIFYING AT TRIAL DUE TO UNTIMELY NOTICE WHEN THE STATE HAD 13 DAYS['] CALENDAR NOTICE ABOUT THE WITNESS INFORMATION PRIOR TO TRIAL AND THE STATE WAS NOT PREJUDICED BY THE TIMING OF THE NOTICE.

{¶ 39} In his second assignment of error, Dyer claims that the trial court abused its discretion in excluding Jackson from testifying at trial. At trial, defense counsel proffered that Jackson would have testified that she was in Dyer's vehicle, that she had overheard the conversation between Dyer and Porter, that she did not hear any threat made by Dyer towards Porter, and that she saw no indication that Dyer was intoxicated.

{¶ 40} The trial court has discretion to regulate discovery in a manner consistent with Crim.R. 16. Crim.R. 16(L) ; State v. Mobley , 2d Dist. Montgomery No. 26858, 2016-Ohio-4579, 2016 WL 3461107, ¶ 23. If it comes to the court's attention that a party has not complied with Crim.R. 16 or the court's discovery order, the trial court may "order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may make such other order as it deems just under the circumstances." Crim.R. 16(L)(1).

{¶ 41} The Ohio Supreme Court has held that "[a] trial court must inquire into the circumstances surrounding a discovery rule violation and, when deciding whether to impose a sanction, must impose the least severe sanction that is consistent with the purpose of the rules of discovery." Lakewood v. Papadelis , 32 Ohio St.3d 1, 511 N.E.2d 1138 (1987), paragraph two of the syllabus. This holding applies equally to discovery violations committed by the State and by the defense. State v. Darmond , 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 42.

{¶ 42} Dyer failed to file his witness list by the discovery deadline, and he moved to file his witness list out of time. The State objected and sought to exclude Jackson and Dyer's oldest son as witnesses on the ground that it lacked a meaningful opportunity to interview or investigate these witnesses. The court reasonably found the State's objection to be meritorious.

{¶ 43} In ordering that Dyer could not present the testimony of his untimely-disclosed witnesses, the trial court fashioned a reasonable sanction for the untimely disclosure. Significantly, the trial court permitted Dyer to seek a continuance of the trial if the excluded witnesses were crucial to his defense. This option would have given the State the notice that it required and allowed Dyer to present his witnesses; Dyer elected not to seek a continuance. We find no abuse of discretion in the trial court's ruling.

{¶ 44} Dyer's second assignment of error is overruled.

IV. Conclusion

{¶ 45} The trial court's judgment is affirmed.

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

      Defense counsel also stated that he was proffering the trial court's dismissal entry, which allegedly dismissed the case following a full hearing for lack of evidence of domestic violence. This exhibit is not in the record.

      In his appellate brief, Dyer states that Jackson was "an unbiased third party and the only witness not related to either the complaining witness, the defendant, or both." The State's appellate brief indicates that Jackson was Dyer's girlfriend, not a neutral third party, and that she was "clearly biased in his favor." The record does not clarify Jackson's relationship to Dyer. At trial, no witness mentioned Jackson, and there was no suggestion that another person witnessed the events at Cunningham's house on July 18, 2016.